Divorce is widely recognised to be one of the top five most stressful life events, sitting just below the death of a spouse. On top of what is already an extremely painful moment in your family’s life, Court proceedings can feel insurmountably nerve-wracking.
At Edwards Family Law, we aim to guide you through the process in the most streamlined and stress-free way possible, by finding and encouraging alternative methods of dispute resolution. This will hopefully keep you out of the Court room and reduce the anxiety of litigation.
A tool widely used during financial proceedings to reach a faster settlement is to opt for a private FDR, instead of relying on the Court’s listings.
What is an FDR?
The FDR (or Financial Dispute Resolution) is the second main hearing within the wider scope of Financial Remedy Proceedings. The first hearing is called a First Appointment, and is generally an opportunity to set a timetable in place for the parties to exchange all relevant information and agree on what evidence must be produced to reach a final determination. After the First Appointment, parties will be engaged in the exercise of trying to agree on what is part of the matrimonial pot and how much each asset or liability is worth.
Hopefully, agreement is reached on each point and the parties can then re-focus their efforts in using this information to negotiate a settlement. At the FDR, upon the review of the information produced, the parties obtain guidance on the likely outcome of a Final Hearing.
This is used to negotiate a final settlement in an effort to avoid proceeding to Final Hearing. You may have heard the phrase “without prejudice”, when referring to the FDR. This means that anything that is discussed at the hearing (including offers made, arguments put forth by each party and concessions made by either party) cannot be repeated at the Final Hearing.
In summary, this provides parties with a chance to try their case. Each party will make submissions as to what they should receive as a Final Order, and the judge will consider each in turn. The Judge will then give an indication. This is not, for clarity, a binding Court Order. This is simply the Judge’s opinion on how the case will end, if a settlement is not agreed.
This gives the parties a very clear idea of the strengths and weaknesses in their cases – and provides them with a springboard from which to start their negotiations.
What is a Private FDR?
All that is explained above in relation to an FDR also applies to its private counterpart. The main difference between a Court FDR private FDR (or pFDR) is that the pFDR is held outside of the Court process.
With a pFDR, the parties can choose their own judge (who will usually be a barrister or retired judge) and their own venue (which will usually be a barrister’s Chambers or a solicitor’s offices). Instead of stepping into a Court room for their allotted time slot, the parties will settle into their respective consultation rooms in the morning with their legal teams, and when ready they can go in to see the private judge to make their submissions. In addition to this, throughout the course of the day (both before and after the indication) the parties will be able to go through matters with their legal teams, and carry out negotiations until an agreement is reached.
Advantages and disadvantages of a Private FDR
- The main advantage of the pFDR is that it is a brilliant time-saving tool. As Courts are often overwhelmed with application, and experiencing severe backlogs, as much as a year can pass between the First Appointment and Court FDR. This is an additional 12 months of costs: both financial and emotional. Many couples may wish to expedite the process, and seek a faster resolution to their matter. A pFDR can be arranged in a matter of days, as long as both parties’ legal teams are confident that all relevant information has been produced.
- It is understood that pFDRs are, in general, more thorough. Court Judges usually have multiple cases on their lists for a single day, which means you are unlikely to get more than one hour in front of them. This also means judges will only have limited reading time ahead of an FDR, while private judges will typically allocate a whole day to read into the matter. They are therefore more likely to take their time in examining and understanding the evidence provided by the parties, and adopt more of a forensic approach. Their indication will similarly be more detailed, focusing on each issue and the reason why a certain decision was reached. This is excellent for negotiations: a comprehensive indication can help narrow the issues in dispute.
- This also means that there is significantly reduced dead time on the day of the pFDR, as you will not have to wait to go into Court and risk being delayed. It is also worth considering that the pFDR judge will be available for the whole day, and will be able to offer input as necessary to resolve any query arising from their indication, or the parties’ negotiations.
- Private FDRs are significantly more comfortable than being in a busy Court building. Consultation rooms in Court buildings are extremely sought after, and it may be quite difficult to find a private place where you can sit down and freely have discussions with your team. Think of the physical comfort, too. FDRs are likely to take place over an entire day, and tiredness can easily set in and risk derailing any progress achieved. Private FDR venues offer more hospitable and inviting spaces, lunch will usually be served to you, and there will be no shortage of hot drinks. These little comforts can help keep you focused on the task at hand, and aid in negotiations.
The key differences between Court and pFDRs are easily identifiable. Private FDRs are quicker, more efficient, more thorough and more comfortable. They are also more likely, in our experience as solicitors, to result in a settlement. Their main disadvantage is that they can be significantly more expensive than attending a Court FDR. This is because the private judge’s fees will need to be split between the parties, and these can be quite costly. It is important, however, to consider their cost within the wider context of financial proceedings.
At Edwards Family Law, we tend to recommend pFDRs to all clients unless their circumstances are uniquely unsuited to them. Of course, in order for any FDR to be effective, the starting point is that parties must be open to negotiating a settlement.
If you require help or advice with your upcoming FDR, please do not hesitate to get in touch.