As NCDR Rule Changes Reach Toddlerhood, Are They Hitting Their Milestones?

In April 2024 there was a great deal of optimism that the new rules and pre-action protocols would inform practice and change culture around NCDR. The new FM5, and increased powers to adjourn or stay proceedings and make costs orders, were all reasons to expect significant changes to approach. Even before the rules were in force, Knowles J had made clear:

‘parties to financial remedy and private law children proceedings can expect – at each stage of the proceedings – the court to keep under active review whether non-court dispute resolution is suitable in order to resolve the proceedings. Where this can be done safely, the court is very likely to think this process appropriate especially where the parties and their legal representatives have not engaged meaningfully in any form of non-court dispute resolution before issuing proceedings.’

Recorder Allen KC had no hesitation in putting the rules into practice in NA v LA and stayed proceedings of his own volition making clear he considered:

‘NCDR to be appropriate and … to encourage the parties to engage in the same. This would be to their emotional and financial benefit as well as to the benefit of their children.’

It seemed that ‘active case management’ was going to be the way of the future and parties would need to come to court ready to justify their decision to be there. However, two years on, what has really changed?

Far from being the start of a tidal wave of judicial decisions encouraging and promoting NCDR with stays, adjournments and costs orders becoming the norm, there is very little else to mention in terms of case-law. Of course, if NCDR is really taking the place of litigation then there won’t be reported decisions as the judges aren’t involved. And that might be the case given the growth in the use of private FDRs in finance cases. But private FDRs have in essence become ‘litigation-lite’ – and there’s a whole other piece that could be written on that front. Had there in fact been the huge culture shift we were expecting, we would have seen more reported decisions in private law children cases and in finance cases adjourning cases for NCDR or making robust costs orders due to a lack of engagement with NCDR. Anecdotally, it seems FM5s are not looming large in the way anticipated by the rule change, and often judges do not refer to them at the first appointment, let alone order them to be filed ahead of the next one.

So, what does need to happen to affect a significant shift? There is still a vocal lobby in finances cases for the reintroduction of Calderbank as having been the most effective lever to promote resolution of issues out of court. But that doesn’t work for private law children cases. And I’m not abandoning hope that the NCDR rule changes might still be the right tool for the job – it’s just that there needs to be some renewed focus.

There are two elements to consider: judicial intervention and professional culture.

Judicial intervention

The rules exist but they are still rarely applied and certainly not robustly. As a matter of course judges could:

1. Ensure FM5 is required before every hearing.
2. Start hearings by scrutinising FM5s so that it becomes what is expected. The inquiry should not begin and end with – have you attended a MIAM?
3. Including recitals in orders, which set out positions on NCDR with an expectation that those positions will impact on costs decisions at a later date.
4. Costs orders at interim hearings where NCDR has been rejected without justification. Courts are just not using the rules to impose costs sanctions when NCDR has been overlooked without justification.
5. Adjourning/staying hearings to allow NCDR to take place.

One of the difficulties in the current system is that listings are now so slow that by the time people come to court it feels counter-intuitive to consider a stay or adjournment. Which is why we need a culture shift as well as rule changes.

Professional culture

A significant advantage of NCDR is that the bespoke nature of the processes allows lawyers to build formats that work outside of the rigidity of the court system. For example:

1. Using mediation alongside arbitration so that there is a firm timetable as a backdrop to constructive discussions.
2. Having arbitration listed for soon after a private FDR.
3. Agree within the scope of arbitration that the arbitrator can consider Calderbank offers in their costs determination (bonus for the Calderbank lobby).
4. Insisting on the sorts of recitals set out above when matters go before a judge

Sometimes there are genuine concerns about NCDR but sometimes it can be about professional habits rather than legal logic, and that’s where there is scope for change.

Arbitration

In many respects, arbitration is miscategorised – the usual reasons why NCDR may not be suitable (imbalance of power, high conflict, lack of trust) don’t apply to arbitration. Whilst costs can be a concern in some cases, the speed with which arbitration can progress often means that any additional costs are significantly mitigated. Certainly, a declaration that arbitration is not suitable requires explanation and an opportunity to address concerns rather than just an acceptance there must be court proceedings.

Another potential issue with arbitration is where there is a point of law to be debated and determined. There can be reluctance to enter into arbitration when there is an expectation that either side would appeal if the determination does not go their way. It would not be in clients’ best interests to add a layer of financial and emotional burden in circumstances where court seems inevitable. However, this is a relatively rare situation.

The statistics show that arbitration is becoming an increasingly popular choice (the total number of financial arbitrations increased by 234% between 2023 and 2025) but the numbers of arbitrations (218 in 2025) pale into insignificance compared to the number of court applications and there is still a real reluctance to use arbitration in private law children cases. There is still much more to be done to make arbitration a standard offering.

Call for change

Two years on what seems clear is that the rules are fit for purpose. The issues come in how they are being applied and enforced. What we need is to shift the dial culturally – for clients, lawyers and the judiciary.