What is a private FDR?

Within family proceedings, family practitioners now need to consider all forms of Non-Court Dispute Resolution (NCDR) with their clients. There are many different options available, but one which I have now experienced a number of times, is a private FDR (Financial Dispute Resolution) hearing. Within financial remedy proceedings parties will at some point (usually the second court hearing) take part in an FDR. This is where the Judge will help the parties try and reach an agreement, thereby avoiding the stress and cost of a final hearing. A private FDR (pFDR) is where the parties agree to instruct a privately paid ‘Judge’ to do the same process. There are, however, some stark differences between the two types of hearings.

Cost

The cost of a pFDR is arguably on the face of it more expensive than a court listed FDR. However, whilst you are paying for the pFDR Judges’ time (an extra expense), and potentially your barrister’s fees being slightly more expensive because of the likely length of a pFDR, the reality is that the costs will overall be less. Within court FDRs you are waiting a long time for a hearing to be listed. Within that time period, costs will inevitably accrue with issues being raised in the interim period. There is the potential for a court hearing to be adjourned at the last minute due to judicial availability, again wasting costs all round. If there is a long gap in between hearings, then updated disclosure will be necessary and therefore increase costs. With a pFDR, a date is agreed between the parties and fixed as soon as reasonably practicable, and you have the benefit of listing your own timetable.

Time

Time at a court FDR is limited. You will have your case listed alongside others. The submissions made by your barrister will be short and concise as the Judge will have a very limited amount of time to hear your case. The indication from the Judge will be direct and short and will usually only be verbal. There is rarely an opportunity to go back before the Judge, the only opportunity being to say if you have reached an agreement or if you have not. There is also no guarantee that the Judge would have had the opportunity to have read the bundle in full.

At a pFDR you have all day with the ‘Judge’. It is common to arrive for around 9am to meet with your solicitor and barrister, with the presentations to the Judge starting between 10am and 11am, and ideally finishing around 12/1pm. The ‘Judge’ will then provide a verbal and written indication of all outstanding issues between the parties. The ‘Judge’ is then available for the rest of the day to help narrow any issues, answer any queries that may arise, and provide further indications if necessary. Otherwise, it is a case of your barrister (with the support of your solicitor) carrying out negotiations and coming (hopefully) to a settlement and entering into signed Heads of Terms of Agreement, before leaving.

The indications given by the ‘Judge’ at the pFDR are detailed, focussed and clear. They are read out by the ‘Judge’ verbally and then emailed in writing so the parties can not only sit and listen, but then read them again once they have left the room. They then have an extended opportunity to go through the indications with their legal representatives and get advice on what has been provided and discuss what issues can be agreed, and what needs further discussion.

Pressure

A court FDR, in my view, can be very pressurised. The time you have before the Judge is limited and there may not even be a room available for you to have private discussions with your legal representative at court if there are several hearings taking place at the same time (which is usual). The court will close promptly so there is a finite period to negotiate. This pressure pot of time does not help the parties focus on the important issues and trying to reach an agreement. Some can feel pressurised into reaching an agreement, and whilst you don’t have to reach an agreement, the thought of more delay and more costs often mean that clients feel they don’t have much choice. The indication is short and succinct, and no written indication is provided.

A pFDR is a very different experience. You will both be in separate rooms with refreshments. The time pressure, whilst there is to an extent, is not at all of the same weight as being at court. You have the luxury of time in being able to listen to an extended detailed indication, and then being able to go through it afterwards, having time to take on board what has been said.

Is it always suitable?

Both parties have to be 100% committed to working towards an agreement. If one party is not, it is unlikely they would agree to take part, but there is now pressure on alternative methods of resolution so there is a chance of it being a waste of costs and time.

If there are specific factual issues which need to be determined, then Arbitration may be a better option for the parties. Arbitration being where a determination of the issues, rather than an indication is given, and that determination is forced on the parties (much like an order by the Family Court at a Final Hearing).

I have represented two intervenors (parents to one of the spouses), at private FDRs. At both, we managed (just about) to deal with both the intervenor and main party application in the same day, but careful consideration needs to be taken as to whether there genuinely is enough time to do this.

Overall, I am a huge fan of this process. To me, the benefits of pFDRs far outweigh the extra cost that they incur. If you wish to discuss the benefits of a pFDR please do get in touch. We offer a free exploratory call so that we can match your specific needs with the right person in our family team.  For more information, or to arrange an appointment with a member of our Family Team, please contact us on 01206 764477. The team can offer advice at one of our offices in Colchester, Chelmsford,  Frinton-on-Sea, Ipswich or Bury St Edmunds, or by telephone or video appointment.