A recent article by The Times paints a picture of high-net-worth couples paying retired judges tens of thousands of pounds to “bash heads together” and settle financial disputes behind closed doors. At Stevens & Bolton, our experience suggests a more nuanced reality.

Whilst this headline captures the upper end of the spectrum, it risks reinforcing the misconception that NCDR (non-court dispute resolution) is just for the ultra-wealthy. In truth, NCDR is increasingly being embraced by a range of families and, in our view, should be actively encouraged. 

Whilst it is true that some high-value cases can incur legal fees exceeding £500,000 per party, these are extremely rare and typically involve complex asset structures, international elements, and protracted litigation. For most separating couples, the cost of court proceedings, both financial and emotional, is simply unsustainable. Litigation often involves long delays, multiple hearings, and significant stress, all of which can exacerbate conflict and hinder resolution. That’s where NCDR offers a valuable alternative. It provides a more constructive, less adversarial route to settlement. By focusing on early resolution, NCDR can reduce hostility and deliver outcomes more quickly and cost-effectively than the traditional court process. 

Importantly, NCDR is not a one-size-fits-all solution. Arbitration results in a binding decision for parties from a neutral third party, often a retired judge, senior solicitor, or barrister. An alternative option is a private FDR hearing where a non-binding indication of what a court might decide is given. This helps parties reach a negotiated settlement. Mediation is another option, which facilitates open dialogue with the help of a trained mediator. While private sessions involve upfront costs, these are often significantly lower than the cumulative expense of court delays, legal fees, and trial preparation. 

Concerns about a “two-tier” system are understandable. Those who can afford private sessions may benefit from more time and attention than the overstretched court system can offer. But this is not a flaw of NCDR itself. In fact, wider use of NCDR may help ease pressure on the courts, allowing judges to focus on cases that genuinely require judicial oversight, such as those involving safeguarding concerns or complex legal issues.

Following the April 2024 reforms to the Family Procedure Rules, parties and judges are now required to actively consider NCDR at every stage of proceedings, and parties who unreasonably refuse to engage in NCDR may face cost penalties. 

The message is clear - early, constructive resolution is no longer just encouraged, it is expected. As a result, we anticipate a continued rise in the use of NCDR, whether through mediation, private FDRs, or arbitration. The right option will depend on the specific circumstances of each case, and careful consideration should be given to which process best suits the parties’ needs.

At Stevens & Bolton, we help clients resolve matters privately, efficiently, and cost-effectively, whether through mediation, private resolution, or, where appropriate, court proceedings. For more information, please contact our family law team.