Resolving family disputes without going to court

We’ve all heard the phrase on TV: “I’ll see you in court”. But when it comes to family matters, in practice family solicitors and our clients are being steered away from the courts to a very different approach.

Many of us have spent years in courtrooms across the country. While court work remains a key part of what we do, we’re seeing an increasing shift toward alternative methods of resolving family disputes – collectively known as Non-Court Dispute Resolution (NCDR). 

What is Non-Court Dispute Resolution?

NCDR is an umbrella term for various approaches that help separating couples or co-parents reach agreements without going to court. These methods can address financial arrangements, child contact, and other family matters. Some are well-trodden, while others are newer, increasingly popular, and (to us lawyers) exciting. All are respected by the courts and often lead to successful outcomes. 

With an ever-increasing court backlog, government repeatedly slashing budgets, centralisation of court services and judicial appointments left vacant, it seems certain that an increasing number of cases will benefit from NCDR.

Mediation

Mediation is perhaps the most well-known NCDR. Family lawyers will doubtlessly have referred many a client to their mediation information and assessment meeting (MIAM), sometimes in the hope of exploring mediation and sometimes to get the necessary certificate. For the latter, we are experiencing greater judicial scrutiny of whether mediation is suitable, both at the start of proceedings and at key stages during. 

Those who have suffered domestic abuse (DA) remain exempt, but perhaps there are some DA cases where we can explore measures to make it work. As technology improves, mediation no longer requires our clients to sit in the same room; shuttle mediation allows for separate spaces, and many sessions now take place via video call such as Zoom or Teams. With more providers offering hybrid mediation, solicitors can be in attendance to ensure there is no imbalance in the power dynamic.

Personally, I always recommend choosing a mediator who is also a qualified family law solicitor or barrister. While we provide the legal advice, their understanding of legal principles ensures the process remains fair and grounded.

For cases involving children, the mediation voucher scheme continues into 2026 – in a recent gatekeeping order, I saw the court directly reference the scheme. If the first session, or two, can be paid for by the scheme, it must be worth trying.

Early Neutral Evaluation (ENE) and Private Financial Dispute Resolution Appointments (pFDR)

If you have been in financial remedy proceedings recently, you will have heard of the Private FDR. Although many traditional cases settle at the Financial Dispute Resolution hearing, it can take anywhere between six to eighteen months to get there. 

If both clients agree, we can jointly instruct a private evaluator (often a part-time judge or senior solicitor/barrister) to review the case and provide an indication. Much like an FDR, lawyers present the case in the morning, and negotiations follow based on the evaluator’s guidance. A key benefit of the private FDR is that you have the evaluator's attention for the day and can return to them as points of dispute arise. If no settlement is reached, the court can be informed of the pFDR, ensuring that costs were not wasted.

The surge in popularity in private FDR bookings is leading to many of my go-to counsel being unavailable for the litigated stuff. As private evaluations continue to grow into next year and beyond, we may find it trickier to find the right counsel to brief for those fixed court dates – leading to an increased desire to have a flexible pFDR accommodated at everybody’s convenience.

Arbitration

We find arbitration comes up the least, but given it is a formal and binding process with a qualified expert resolving cases without the delays of court, it is something we should consider more often and something I am keen to explore more in 2026.

Parties appoint a suitably qualified arbitrator, a trained professional from the Institute of Family Law Arbitrators (IFLA), to resolve their dispute. If you can’t agree the identity of the arbitrator, the IFLA can select one for you. This helps clients save costs and avoid trial-by-correspondence at the first hurdle.

Arbitration can cover financial matters or child arrangements between parents, with orders lodged with the court to ratify the award (or determination for Children Act cases). 

Be wary, arbitration may not be for those clients who struggle to engage. Once you enter into an arbitration agreement, you’re committed to the process.

We will still put our clients’ best case forward, the arbitrator will consider a number of documents, including but not limited to:

• Written submissions from solicitors.
• Disclosure documents, such as financial records or expert reports.
• Witness statements outlining each party’s position.

Once the arbitrator has everything they need, the award or determination is usually issued within 28 days. As confirmed in Haley v Haley [2020] EWCA Civ 1369, the court will only refuse to ratify an award if there are “good and substantial grounds for concluding that an injustice will be done if an order is made in the terms of the arbitral award.”

One thing that has been holding me back from exploring arbitration further is lack of knowledge – the fear of the unknown – but having been exposed to a few cases now it is nothing to be afraid of and with more and more lawyers taking their arbitration training it should get easier. 

Collaborative law

For those of us who are members of Resolution, collaborative law offers a hands-on, cooperative approach. Each party instructs a specially trained solicitor and commits to resolving matters without going to court. 

All parties sign a participation agreement, confirming their intention to work together amicably. Regular four-way meetings are held, where clients and solicitors discuss issues openly and constructively. Rather than adversarial negotiations, the solicitors collaborate, sharing ideas and jointly instructing experts like financial advisors, pension actuaries or independent social workers to guide fair outcomes.

Training is necessary. Resolution offer training in collaborative practice throughout the year and many solicitors offer collaborative supervision. Some cities even have ‘pods’ so you can find like-minded lawyers to collaborate with and members of Young Resolution (YRes) are encouraged to take the training.

With an increasing number of collaborative practitioners and ever-expanding pods, we are expecting more new enquiries asking whether we offer collaborative law, especially if their former partner has been advised of the same. 

Summary

Avoiding the family court doesn’t mean compromising on fairness or legality. Through NCDR methods like mediation, arbitration, ENE/pFDR, and collaborative law, families can resolve disputes efficiently, respectfully, and with less emotional strain. They will still need our advice and support, but without the need to don the three-piece and sit waiting in a block-booked county court.

A final thought – it is often said that NCDR is only for the affluent client. While it may be true that mediators, evaluators and arbitrators carry fees, I posit you this – NCDR is likely to cost parties less than a fully litigated set of proceedings, it is simply more concentrated in a singular process. If our clients can find a way to make it work, they stand to spend less in the totality, which can only be good for them and their families.

Copyright & permissions