From Barrister to Neutral – Building a Practice in Non-Court Dispute Resolution

Introduction

Earlier this year I found myself on a train to Cornwall with Rhys Taylor. We talked about how I had come to develop a practice in non-court dispute resolution (NCDR) and Rhys asked if I’d be prepared to write a piece for the Financial Remedies Journal explaining how I’d made the transition and sharing some reflections for anyone thinking about doing the same. Despite doubting that anyone would be remotely interested, I agreed.

Why change?

Before turning to the ‘how’, it seems sensible to touch briefly on the ‘why’. The answer is partly professional and partly personal. As to the professional, there was a great deal that I enjoyed about practice at the family Bar, not least the camaraderie of chambers and the pleasure that sometimes came when I felt that I had made a difference in a case. I came to realise, though, that I enjoyed settling cases much more than I enjoyed fighting them. I wondered if it might be time for a change.

At around the same time, my second daughter had just turned one and my wife returned to work following her parental leave. Like many parents of young children, we wrestled with how to balance demanding careers with bringing up a family and concluded that both of us carrying on as we were wasn’t going to work. The upshot was that in January 2014 I started a period of (indefinite) parental leave. It was an inauspicious start, with my plans to throw myself into the local parenting scene thwarted when my eldest contracted chicken pox and then (inevitably) passed it on to my youngest. We spent a month cooped up at home and I wondered if Central Family Court trials weren’t really that bad after all.

In the months that followed I thought a lot about what I might do next. I considered continuing my existing practice part-time, but that didn’t really address the concerns I had as to whether being an advocate was what I really wanted to do. I thought about trying something completely different, but it wasn’t obvious what I might do that would be both flexible and professionally fulfilling. It also felt like a really big decision to leave chambers.

The conclusion I reached was that there might be a way in which I could stay at QEB, focus on the parts of my practice that I enjoyed most and have more flexibility. The seed was sown a few years previously when I attended Resolution’s Collaborative training. Although I came away with the impression (at that point in time, at least) that the role for counsel was fairly limited, my eyes were opened to the benefits of NCDR more generally and the skills I learned made me, without question, a better lawyer.

So, in the summer of 2014 I sat opposite my then head of chambers explaining that I would like to develop a practice in NCDR. It would be something of an exaggeration to say that either he, or my then senior clerk, thought it was a brilliant idea. But neither said ‘no’ and I remain grateful for the support that I was given by chambers in doing something that hadn’t been done before.

Starting again from scratch

I knew that developing a new practice was not going to happen overnight. Having been a tenant for more than 10 years it was daunting to find myself, more or less, back at square one.

Having no qualifications in NCDR save for the Collaborative training, the first step along the road was to train to be a mediator and arbitrator. The mediation training was something of a watershed moment. Instinctively, I thought that mediation might be a good fit for me, but the training confirmed it. It also put to bed my lingering worry that as a barrister I might make a poor mediator. Of course there are differences – but knowing what to say, and what not to say, and asking the right questions are crucial in both roles.

Having completed the training I had to decide whether to commit exclusively to non-court work or continue accepting instructions as a barrister alongside it. In the early stages, doing both would undoubtedly have made the financial transition less acute – but my worry was that if I tried to do both, the non-court work would risk being crowded out. Looking back, I’m glad I made the decision that I did. Had I not, it would at best have taken much longer to make the transition, and at worst it may not have happened at all.

Building a practice – from advocate to neutral

Developing a practice in NCDR inevitably took time. When I started out in 2014, the arbitration scheme was in its infancy and PFDRs were still very much the exception rather than the rule. Against that backdrop, it was perhaps unsurprising that most of my time in the early years was spent mediating.

Something that became immediately apparent was that completion of the mediation foundation training was just the beginning of the journey. Although the training was fantastic, I felt that I had an enormous amount still to learn. In particular, the experience of having not one client in the room, but two, felt very alien.

At the same time, it was immediately rewarding. My first mediation session settled, the couple having come into it (somewhat unusually) with completely open minds as to how both the arrangements in respect of their children and the finances might be resolved. Over a number of sessions we explored the different options, considered the pros and cons, and in respect of the finances they reached a resolution which allowed them both – just – to re-house. Any prolonged litigation would likely have made that impossible. A little while after the mediation had finished, they emailed me to thank me and said they couldn’t have done it without my help. It was one of the best moments of my professional life.

Over time, I felt more at ease managing the dynamics of two clients, but having spent more than a decade being paid to speak, old habits died hard. By some distance the most difficult thing was learning when to say nothing at all. In the early days it was often too tempting to fill those awkward gaps. I gradually came to understand the power of silence and how important it was not to jump in, not to be the problem solver, but to give clients the time and space to reflect or process before responding.

The changing landscape

Changes within the family justice system over the past decade have undoubtedly helped in making the transition to NCDR possible.

First, a combination of factors including the increased pressure on the court system and the changes to the FPR 2010 in 2024 mean that the ‘A’ in alternative dispute resolution is now firmly confined to the dustbin. NCDR has increasingly become a fundamental part of family law practice and the courts appear increasingly willing to use the powers available to them to stay cases in favour of non-court options. In A v M (No 3) [2024] EWFC 299, Sir Jonathan Cohen remarked that:

‘This case cries out for mediation … I will need to hear from counsel as to whether such mediation takes place … I have the power to adjourn proceedings for that mediation to take place, and it is a power that I intend to exercise …’

Although we are still waiting for a High Court decision following the changes to rules in 2024 in which a party is penalised for an unreasonable failure to engage in NCDR, Recorder Nicholas Allen KC in DF v YB (No 2: Costs) [2025] EWFC 76 (B) expressed the view that it is only a matter of time:

‘I have no doubt that in due course there will be a family case in which a failure by a party without good reason to attend (or engage in) NCDR will be considered to be litigation conduct and justify a costs order …’

Second, there has been both significant growth in the number of non-court options available to clients and an increased awareness of the importance of better integrating those options. By way of example:

• IFLA’s Children scheme was launched in 2016 and later extended to allow arbitrators to hear international relocation cases (to Hague countries);
• mediation is used more flexibly. Resolution now offers training in the hybrid model of mediation, which borrows from the civil and commercial model and allows the mediator to keep confidences, which can be particularly helpful when the outcome is more binary (such as Trusts of Land and Appointment of Trustees Act 1996 cases) or where there are reasons to have clients in separate rooms (e.g. where there are allegations of domestic abuse). It is also much more usual now to involve other professionals, such as the clients’ lawyers, in the process;
• one lawyer, two client models have emerged, enabling advice to be given to a separating couple together;
• we have become less siloed in our approach (albeit there is work to do). Rather than seeing the non-court options as wholly independent processes, more thought is given to integration. By way of example, the Collaborative participation agreement has been amended to allow a transition to arbitration and evaluation in mediation is seen as a legitimate route to overcoming impasse.

Thinking about a move into non-court dispute resolution? A few reflections

If you’re thinking about focusing more on NCDR, here are a few thoughts.

First, try to see some NCDR in action. If you have a colleague who is trained in mediation or Collaborative practice, see if it would be possible to sit in on a session. Having a better understanding of what each non-court option involves will help you to explain it to clients and explore what might be a good fit for them.

Second, consider some training. The essential skills that are taught as part of the Collaborative and mediation training will stand you in good stead whether or not you decide to develop a practice in NCDR – especially in an ever-changing world where artificial intelligence (AI) is likely to play an increasingly prominent role, if not when it comes to the giving of advice, then at least in the process-side of what we do. The need to be skilled communicators and facilitators, the part that AI will be less able to replicate, is likely to become increasingly important. Speaking from experience, I would however exercise caution before deploying these skills at home or you risk being told by your partner that they ‘don’t want to be mediated’.

Third, for those at the Bar, consider carving out time in your diary for non-court work. This could be a day or two each week or week-long periods if you’re not doing it full-time. Although you run the risk of gaps in the diary, it is much more difficult to develop a practice if you don’t make space for it.

Lastly, if you’re seriously considering a move into NCDR, think carefully about the cons as well as the pros. One consequence of doing less court work for those at the Bar is, inevitably, that an application for Silk will be (even) more difficult. This was something that Rhys asked me about on our journey to Cornwall. How did I feel about giving up on that possibility? The answer is that I am completely at peace with it; that the pros of my practice outweigh the cons. But not everyone will feel the same.

Concluding thoughts

I would love to say that when I sat at home 12 years ago surrounded by spotty children and calamine lotion that I had a feel for the direction of travel that family law might take and that I had confidence that a move into non-court work would be successful; but I did not. At best, I sensed that a practice away from the courtroom would be a better fit for me and I gave it a go. If you’ve made it this far, started this article feeling the same way and haven’t been put off by what you’ve read, I’d simply suggest that you give it a go too.