Non-court dispute resolution (NCDR) is the term used by the Family Procedure Rules 2010 for “methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law”.[1] Part 3 of the Rules, together with Practice Direction 3A, governs how the Family Court in England and Wales deals with it. Part 3 contains two distinct sets of rules: the requirement that an applicant attend a Mediation Information and Assessment Meeting (MIAM) before starting most private family proceedings, which is rooted in section 10 of the Children and Families Act 2014, and a continuing duty on the court itself to consider, “at every stage in proceedings, whether non-court dispute resolution is appropriate”.[2][3]
Part 3 was substantially rewritten by the Family Procedure (Amendment No. 2) Rules 2023, in force from 29 April 2024.[4] Since that date the court may require each party to file a statement of their views on NCDR on Form FM5, may adjourn and timetable proceedings to encourage NCDR without needing the parties’ agreement, and, in financial remedy proceedings, must take into account “any failure by a party, without good reason, to attend a MIAM or attend non-court dispute resolution” when deciding costs.[3][5] The court has no power to order a party to take part in NCDR; Practice Direction 3A states this in terms.[6] This article covers the court-side rules. The MIAM itself, and the exemptions from it, are covered on Family Mediation Wiki.
Definition and purpose
Rule 2.3(1) of the Family Procedure Rules 2010 defines “non-court dispute resolution” as “methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law”.[1] This definition was substituted by rule 3 of the Family Procedure (Amendment No. 2) Rules 2023 with effect from 29 April 2024; the earlier definition named only mediation as an example and the new text adds arbitration, neutral evaluation and collaborative law and makes clear that the list is not closed.[4][1] The family rules use “non-court dispute resolution” rather than “alternative dispute resolution”, reflecting the position that resolution outside court is one of the ordinary routes by which family disputes are settled rather than an alternative to a norm.
The purpose of Part 3 is stated in the overriding objective. Rule 1.4(2)(f) lists among the court’s active case management duties “encouraging the parties to use a non-court dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure”.[7] Part 3 gives that duty content. Rule 3.3(1) requires the court to consider NCDR at every stage; rule 3.4 gives the court the tools to timetable around it; rules 3.6 to 3.10 impose the MIAM requirement on applicants; and rule 28.3(7)(aa) attaches a costs consequence in financial cases.[3][5]
Two limits should be stated at the outset. First, the court cannot compel a party to mediate, arbitrate or take part in any other NCDR process: Practice Direction 3A records that “the FPR do not give the court the power to require parties to attend non-court dispute resolution”.[6] Secondly, Part 3 operates alongside, not instead of, the substantive law. A MIAM is a pre-condition to issuing an application, and unreasonable refusal to engage can affect costs, but neither the MIAM nor any NCDR process decides the case.
Legal basis
The statutory root is section 10 of the Children and Families Act 2014, which provides that “before making a relevant family application, a person must attend a family mediation information and assessment meeting” and delegates the detail to rules of court.[2] The remainder of Part 3, including the court’s own duty and its powers to adjourn, rests on the general rule-making power in the Courts Act 2003 under which the Family Procedure Rules are made, and is supplemented by Practice Direction 3A.[3][6]
| Provision | Subject | Effect |
|---|---|---|
| Rule 2.3(1) | Definition | Defines non-court dispute resolution as any method other than the court process, with a non-exhaustive list[1] |
| Rule 3.1 | Interpretation | Defines MIAM, MIAM requirement, MIAM exemption, authorised family mediator, private law proceedings and relevant family application[3] |
| Rule 3.3 | The court’s duty | Court must consider NCDR at every stage (3.3(1)); may require a party to file a form of views on NCDR (3.3(1A)); must take into account whether a MIAM took place, whether an exemption was validly claimed and whether NCDR was attempted (3.3(2))[3] |
| Rule 3.4 | Timetabling | Where NCDR is appropriate the court should encourage the parties to obtain information about and undertake NCDR (3.4(1A)); may give directions of its own initiative at any time (3.4(2), (2A)); in children cases only after receipt of the Cafcass safeguarding letter (3.4(2B))[3] |
| Rules 3.6 and 3.7 | The MIAM requirement | Applies to applications initiating proceedings listed in PD3A; the application must contain the mediator’s confirmation or a claimed exemption[3] |
| Rule 3.8 | MIAM exemptions | Domestic abuse, child protection, urgency, previous MIAM or NCDR within four months, and other listed circumstances[3] |
| Rule 3.9 | Conduct of MIAMs | Only an authorised family mediator may conduct a MIAM; sets the mediator’s duties, including indicating the most suitable form of NCDR[3] |
| Rule 3.10 | Invalid exemption | Court must inquire whether an exemption was validly claimed and may direct attendance at a MIAM and adjourn[3] |
| PD3A paras 10A to 10D | Court’s duty in practice | No power to compel; Form FM5 procedure; use of gaps between hearings for NCDR[6] |
| Rule 28.3(7)(aa) | Costs in financial remedy proceedings | Court must have regard to any failure, without good reason, to attend a MIAM or NCDR[5] |
Forms of non-court dispute resolution
The rules name four forms of NCDR by way of example: mediation, arbitration, evaluation by a neutral third party (of which the private financial dispute resolution appointment is the named instance) and collaborative law.[1] Since the list is not exhaustive, solicitor-led negotiation, round-table meetings, early neutral evaluation in children cases and any other method outside the court process also fall within the definition. Form FM5 asks a party which of “Mediation, Arbitration, Neutral Evaluation, Collaborative Law, Other” they have attended.[8]
Family mediation
Mediation is the most widely used form and the only one that is publicly funded through legal aid and the Family Mediation Voucher Scheme. An impartial, FMC-accredited mediator helps the two people reach their own agreement about children, money or both; the mediator does not decide anything and any outcome is recorded in a memorandum of understanding that is not binding until turned into a consent order. The process, its costs and its funding are covered in full on Family Mediation Wiki; its relationship with court proceedings is on mediation and the Family Court.
Family arbitration
Family arbitration is administered by the Institute of Family Law Arbitrators (IFLA), a not-for-profit body created by the Chartered Institute of Arbitrators, the Family Law Bar Association and Resolution, in association with the Centre for Child and Family Law Reform.[9] Its Financial Scheme opened in 2012 and its Children Scheme in 2016.[10] The parties appoint a qualified arbitrator and “agree to be bound by the reasoned written decision of the arbitrator”, called an award in financial cases and a determination in children cases; IFLA describes the decision as “the equivalent of a final judgment and is binding on the parties”.[10] In financial cases the parties then apply to the court for an order in the terms of the award, and IFLA states that the court is “highly likely” to make it.[10] The arbitrator’s fee is usually shared equally and the process is confidential.[10]
Neutral evaluation and the private FDR
In a private financial dispute resolution appointment (private FDR) the parties jointly pay a specialist, often a retired judge, barrister or solicitor, to conduct the equivalent of the in-court FDR: after hearing both sides the evaluator gives an “indication” of the likely outcome, which is without prejudice and not binding but which the parties can accept or use as the basis for negotiation.[11] The Financial Remedies Guide 2026, issued with the approval of the President of the Family Division, states that judges of the Financial Remedies Court “will encourage parties to explore the available possibilities”, including a private FDR, and where one is arranged the court dispenses with the in-court FDR and lists a mention hearing to be vacated if a consent order is filed.[12] Early neutral evaluation on the same model is available in children cases, though less commonly used.
Collaborative law
In the collaborative process each person appoints a collaboratively trained lawyer and the four meet together. At the outset “you and your team sign an agreement that commits you to trying to resolve the issues without going to court”; if the process fails, the same lawyers cannot represent either party in proceedings, which is intended to keep everyone committed to settlement.[13] Financial advisers, family consultants and child specialists may join the team, and Resolution describes two to five meetings as typical.[13] Resolution also lists lawyer-led negotiation, “Resolution Together” (one lawyer advising both people jointly) and parenting co-ordination among the process options available outside court.[14]
A comparison of the likely cost and time of mediation against a contested court application, based on published court fees, the voucher scheme and Family Court Statistics Quarterly timescales, is provided by the mediation vs court calculator on Mediation Guide, a site published by Family Legal Ltd, the publisher of this wiki.[15]
The MIAM requirement: rules 3.6 to 3.10
Rule 3.6 applies the MIAM requirement to any application that initiates proceedings of a kind listed in Practice Direction 3A: private law children applications under the Children Act 1989 (including child arrangements, prohibited steps, specific issue, parental responsibility and special guardianship orders) and applications for a financial remedy.[3][6] Rule 3.7 requires the application form to contain either an authorised family mediator’s confirmation that the applicant attended a MIAM or the applicant’s claim to an exemption under rule 3.8.[3] Practice Direction 3A expects the meeting to take place within 15 business days of contacting the mediator and expects the prospective respondent to attend as well.[6]
On Form C100 and Form A the mediator signs a section of the form itself; for other applications, such as those made on Form C1 for parental responsibility or guardianship, confirmation is given on Form FM1. A list of the forms to which the requirement attaches, with the relevant sections of the Children Act 1989, is maintained by MIAM UK, a Family Legal Ltd service.[16]
Rule 3.8 lists the circumstances in which the requirement does not apply. In summary they are: evidence of domestic abuse of a kind listed in paragraph 20 of Practice Direction 3A; current child protection enquiries or a child protection plan; urgency; attendance at a MIAM or an NCDR process about the same dispute in the previous four months; an application made without notice; and a set of practical barriers (disability, imprisonment, bail conditions, no available mediator) which since April 2024 apply only where the person cannot attend online or by video link.[3] Four former exemptions were removed by the 2023 amendment rules.[4] The evidence needed for each exemption is set out on MIAM exemptions; this article does not repeat it.
Rule 3.9 provides that only an authorised family mediator may conduct a MIAM and, since April 2024, requires the mediator to indicate which form of NCDR “may be most suitable” and to explain how to proceed with it.[3] Rule 3.10 requires the court to inquire whether a claimed exemption was validly made and whether it still applies. Practice Direction 3A directs that this is done when the court makes its allocation decision in private law children proceedings and, in financial cases, at the first hearing.[6] If the exemption was not valid or no longer applies, “the court may direct the applicant, or the parties, to attend a MIAM and may adjourn proceedings pending MIAM attendance”, unless it considers that the requirement should not apply in the circumstances.[6][3]
The court’s continuing duty: rules 3.3 and 3.4
Rule 3.3(1) provides: “The court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate.”[3] Under rule 3.3(2), in proceedings started by a relevant family application the court must take into account whether a MIAM took place, whether a valid exemption was claimed or confirmed, and “whether the parties attempted mediation or another form of non-court dispute resolution and the outcome of that process”.[3] Rule 3.3(1A), inserted in April 2024, allows the court to require a party to file and serve “a form setting out their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings”; that form is Form FM5.[3][17]
Rule 3.4 sets out what the court can do once it considers NCDR appropriate. Where the timetable allows, “the court should encourage parties, as it considers appropriate, to (a) obtain information and advice about, and consider using, non-court dispute resolution; and (b) undertake non-court dispute resolution”.[3] The court may give directions to that end on application or of its own initiative, and at any time during the proceedings, subject to one restriction: in private law children proceedings governed by Practice Direction 12B it may do so only “after the court has received the safeguarding letter or safeguarding report”, so that no family is directed towards mediation before Cafcass has checked for domestic abuse and risk to children.[3] Where it gives such directions the court must also direct how and when the parties are to tell it whether any issues have been resolved, and if they do not, it gives further case management directions.[3]
The significant change made in April 2024 was the removal of the former requirement that the parties agree to an adjournment for NCDR. Under the pre-2024 rule 3.4 the court could adjourn for that purpose only where the parties agreed; the amended rule allows the court to build NCDR into the timetable of its own motion.[4][3] Practice Direction 3A adds that “it may be that there are gaps in time between hearings which the court considers the parties should use to attend non-court dispute resolution and the court should make it clear to the parties if this is the case”.[6] In practice this means that at a First Hearing Dispute Resolution Appointment, a first appointment in financial remedy proceedings or a dispute resolution appointment, the judge may list the next hearing some months ahead and record in the order that the parties are expected to use the interval for mediation, a private FDR or arbitration, and to report back.
The duty is one to consider and encourage, not to compel. Practice Direction 3A states plainly that the Rules “do not give the court the power to require parties to attend non-court dispute resolution”.[6] What the court can do is adjourn, timetable, require information on Form FM5, and, in financial cases, reflect an unreasonable refusal in costs. The parties’ views on NCDR must also be addressed in every position statement: Practice Direction 27A, in force from 2 March 2026, requires a position statement, where applicable, to inform the court of “the parties’ views on using non-court dispute resolution as a means of resolving the matters in dispute”.[18]
Form FM5
Form FM5, “Statement of position on non-court dispute resolution”, is the standard form contemplated by rule 3.3(1A) and Practice Direction 3A paragraph 10C. It was published on 29 April 2024.[17] Paragraph 10B of the Practice Direction applies the FM5 procedure in two classes of case: financial remedy proceedings to which the MIAM requirement applies, and private law children proceedings to which the MIAM requirement applies “where those proceedings are progressing on the online system referred to in Practice Direction 36ZD”, unless the applicant claimed a domestic abuse exemption or a Form C1A has been filed.[6] Paragraph 10C requires each party to file and serve the form “at least 7 days before the first hearing in the proceedings which is held on notice to all parties”, or within such other period as the court directs, and, if the court requires, an updated form before any later hearing.[6]
The form asks whether the party has attended NCDR about the dispute, which kind, with whom and when, and, if so, why a court order is now being sought; if not, applicants are asked whether they were entitled to a MIAM exemption, and both parties are asked to explain why they are seeking a court order without having attended NCDR. It ends with a statement of truth.[8] In financial remedy proceedings a completed FM5, where applicable, is one of the preliminary documents that must be included in the court bundle.[18] The form, its timing and its consequences are covered on Form FM5.
Costs consequences
In financial remedy proceedings the general rule is that the court will not make an order for costs, but it may do so where a party’s conduct justifies it.[5] Since 29 April 2024 rule 28.3(7) has listed, among the matters the court must have regard to when deciding whether to make such an order, “(aa) any failure by a party, without good reason, to (i) attend a MIAM (as defined in rule 3.1); or (ii) attend non-court dispute resolution”.[5][4] An unreasonable refusal to engage can therefore result in a party being ordered to pay some of the other side’s costs, or losing costs they might otherwise have recovered.
In private law children proceedings the ordinary position is also that no order for costs is made, and Part 28 does not contain an equivalent express provision. The court nevertheless retains a general discretion over costs under rule 28.1, and the conduct of a party, including a refusal to consider NCDR that the court regarded as unreasonable, is capable of being relevant to it.[5] The 2024 government response to the consultation on earlier resolution described the rule changes as allowing courts to take into account, in costs decisions, parties who avoid dispute resolution without good reason.[19]
Case law
Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 is a civil, not a family, case, but it changed the background against which the 2024 family rules were introduced. A Court of Appeal comprising the Lady Chief Justice, the Master of the Rolls and Birss LJ held on 29 November 2023 that the court can lawfully stay proceedings for, or order the parties to engage in, a non-court dispute resolution process provided that the order “does not impair the very essence of the claimant’s right to proceed to a judicial hearing” and is “proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost”.[20] The court held that the well-known passages in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, which had said that compelling unwilling parties to mediate would obstruct their right of access to the court, were not binding.[20]
X v Y [2024] EWHC 538 (Fam), decided by Mrs Justice Knowles on 8 March 2024 in financial remedy proceedings, applied that reasoning to the family jurisdiction shortly before the new rules came into force. The judge said that the forthcoming changes “will give an added impetus” to the court’s duty, that rule 3.3(1) “mandates the court with a duty to consider if non-court dispute resolution is appropriate at every stage in proceedings”, and that parties in financial remedy and private law children cases could expect the court to treat an unreasonable failure to engage as “a reason to consider departing from the general starting point that there should be no order as to costs”.[21] She also observed, in words echoing Churchill, that an order encouraging NCDR “does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate”.[21]
The Financial Remedies Guide 2026, which consolidated the earlier efficiency statements of the Financial Remedies Court, records that its judges “will be ever-mindful of opportunities for the parties to engage in attempts to reach settlement” by whatever means of NCDR, and that where a private FDR has taken place the parties must tell the next judge when it happened and who conducted it.[12]
History
| Date | Development |
|---|---|
| April 2011 | The Pre-Application Protocol for Mediation Information and Assessment, introduced through Practice Direction 3A, set out an “expectation” that parties in relevant private family law cases would attend a MIAM; it was not a requirement[22] |
| 22 April 2014 | Section 10 of the Children and Families Act 2014 made MIAM attendance a statutory pre-condition, so that applicants “must” attend unless exempt, and Part 3 of the Rules was substituted to give effect to it[2][22][3] |
| 29 November 2023 | Churchill v Merthyr Tydfil: the Court of Appeal held that courts can order parties to engage in NCDR within limits[20] |
| 30 November 2023 | The Family Procedure (Amendment No. 2) Rules 2023 were made[4] |
| 26 January 2024 | The government published its response to the consultation on supporting earlier resolution of private family law arrangements, declining to make mediation compulsory and relying instead on the rule changes, the voucher scheme and the Pathfinder courts[19] |
| 8 March 2024 | X v Y: Knowles J signalled that the family courts would use the new rules actively[21] |
| 29 April 2024 | The amended Part 3 came into force: wider definition of NCDR; rule 3.3(1A) and Form FM5; adjournment for NCDR no longer dependent on agreement; tighter MIAM exemptions; new mediator duties; rule 28.3(7)(aa) on costs[4][3][17] |
| 2 March 2026 | The new Practice Direction 27A required position statements to state the parties’ views on NCDR and listed Form FM5 among the preliminary documents in financial remedy bundles[18] |
| 13 March 2026 | The Financial Remedies Guide 2026 consolidated the Financial Remedies Court’s guidance on private FDRs and NCDR[12] |
Criticism and debate
The central question in the years leading up to the 2024 changes was whether mediation should be compulsory. The Ministry of Justice consulted on that proposal in March 2023 and received 281 responses; its response of January 2024 rejected mandatory pre-court mediation, preferring to strengthen the court’s existing powers, extend the voucher scheme and expand the investigative Pathfinder model.[19] Domestic abuse organisations had argued that compulsion risked drawing victims into a process that was unsafe for them, which is reflected in the domestic abuse carve-out from the Form FM5 procedure and in the rule that no NCDR direction may be given in children cases before the safeguarding letter is received.[6][3]
A second criticism runs the other way: that the court’s powers remain weak because attendance cannot be ordered and the costs sanction has no direct equivalent in children cases, where the great majority of private family applications are made. In January to March 2026, 49 per cent of private law children disposals involved no legally represented party on either side, which limits the practical effect of a costs-based incentive and places weight instead on judicial encouragement and on information given at the MIAM.[23] Whether Churchill would support a family court in staying proceedings until the parties had attended a form of NCDR, beyond the MIAM, has not yet been decided at appellate level in the family jurisdiction.
Finding a provider
Each form of NCDR has its own professional body and register. Family mediators are listed on the Family Mediation Council register; family arbitrators on the IFLA panel; collaboratively trained lawyers and private FDR evaluators through Resolution and the specialist family Bar.[9][14] Providers of family mediation range from sole practitioners to national services; Mediate UK, a trading name of Family Legal Ltd, the publisher of this wiki, is one such national provider, conducts all its MIAMs online and holds a Legal Aid Agency family mediation contract, live from August 2026.[24]
See also
- Form FM5 – the statement of position on NCDR
- Form C100 – the children application to which the MIAM requirement attaches
- Financial remedy proceedings – where the costs rule applies
- First Hearing Dispute Resolution Appointment
- Dispute resolution appointment
- Position statement – must state the parties’ views on NCDR
- Mediation Information and Assessment Meeting – the pre-application meeting
- MIAM exemptions – the full list and the evidence needed
- Mediation and the Family Court – the mediation-side view of the same rules
- Form A – the financial remedy application
References
- Family Procedure Rules 2010, rule 2.3: Interpretation (definition of non-court dispute resolution). legislation.gov.uk. Accessed 5 September 2026.
- Children and Families Act 2014, section 10: Family mediation information and assessment meetings. legislation.gov.uk. Accessed 5 September 2026.
- Family Procedure Rules 2010, Part 3: Non-court dispute resolution. Ministry of Justice. Consolidated text incorporating amendments in force 29 April 2024. Accessed 5 September 2026.
- The Family Procedure (Amendment No. 2) Rules 2023, SI 2023/1324. legislation.gov.uk. Made 30 November 2023; rules 3 and 5 to 19 in force 29 April 2024. Accessed 5 September 2026.
- Family Procedure Rules 2010, Part 28: Costs (rule 28.3(7)(aa)). Ministry of Justice. Accessed 5 September 2026.
- Practice Direction 3A: Family Mediation Information and Assessment Meetings (MIAMs). Ministry of Justice. Accessed 5 September 2026.
- Family Procedure Rules 2010, Part 1: Overriding objective. Ministry of Justice. Accessed 5 September 2026.
- Form FM5: Statement of position on non-court dispute resolution (NCDR), version 04.24. HM Courts and Tribunals Service. April 2024. Accessed 5 September 2026.
- Institute of Family Law Arbitrators. Institute of Family Law Arbitrators. Accessed 5 September 2026.
- Frequently asked questions about family arbitration. Institute of Family Law Arbitrators. Accessed 5 September 2026.
- Private financial dispute resolution. Resolution. Accessed 5 September 2026.
- Financial Remedies Guide 2026. Financial Remedies Court, Courts and Tribunals Judiciary. 13 March 2026. Accessed 5 September 2026.
- The collaborative process. Resolution. Accessed 5 September 2026.
- Your process options for divorce and dissolution. Resolution. Accessed 5 September 2026.
- Mediation vs court calculator. Mediation Guide (Family Legal Ltd). last verified 4 July 2026. Accessed 5 September 2026.
- Which forms need a MIAM for court? C100, Form A, C1. MIAM UK (Family Legal Ltd). last reviewed 12 June 2026. Accessed 5 September 2026.
- Statement of position on non-court dispute resolution: Form FM5. HM Courts and Tribunals Service. published 29 April 2024, updated 8 October 2024. Accessed 5 September 2026.
- Practice Direction 27A: Family Proceedings: Court Bundles. Ministry of Justice. In force 2 March 2026. Accessed 5 September 2026.
- Supporting earlier resolution of private family law arrangements: government response. Ministry of Justice. 26 January 2024, updated 12 February 2024. Accessed 5 September 2026.
- Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. Find Case Law, The National Archives. 29 November 2023. Accessed 5 September 2026.
- X v Y [2024] EWHC 538 (Fam). Find Case Law, The National Archives. 8 March 2024. Accessed 5 September 2026.
- Mediation Information and Assessment Meetings (MIAMs) and mediation in private family law disputes: quantitative research findings. Ministry of Justice Analytical Series. 2015. Accessed 5 September 2026.
- Family Court Statistics Quarterly, January to March 2026. Ministry of Justice. 25 June 2026. Accessed 5 September 2026.
- Mediate UK: family mediation services. Mediate UK (Family Legal Ltd). Accessed 5 September 2026.
External links
This article is part of Family Court Wiki, published by Family Legal Ltd. It is general information about the law of England and Wales, not legal advice. Last reviewed 6 September 2026. About this site and editorial policy · Report an error.