What is a private FDR hearing?
In financial remedy cases, the Financial Dispute Resolution hearing is a key stage. It is a “without prejudice” hearing at which the parties are expected to roll their sleeves up, negotiate and focus on settlement. What happens at the FDR stays at the FDR; neither party can refer to settlement proposals after the event if the case goes to a final hearing.
At court, financial remedy cases have less priority than cases involving children., and all cases are subject to significant delays, including last minute adjournments. The court system has for some timed been a slow, expensive and unpredictable beast. Increasingly judges have less time to spend on cases and to prepare, and attending court is rarely a comfortable or pleasant experience. To counter this family lawyers have developed a parallel process designed to mitigate the worst excesses of litigation.
How does this work?
If the parties agree, they can step out of the court process and arrange a “private” hearing themselves.
The private process mimics a court hearing; documents are prepared, lawyers address a judge who then gives a sign of how the law applies and the outcome likely if the case went to a final hearing.
Rather than attend court, where there may be few private rooms, and little time available, the private FDR is usually at the office of a barrister. This is frankly a much more pleasant experience than going to court.
The parties agree the judge in advance- an experienced lawyer who may sit as a part time judge. The judge will only deal with your case, unlike at court where your case is one of many considered that day. You can have total confidence that the judge will have received and had time to read the papers in advance, time to prepare your case thoroughly. You can no longer assume this when a case goes to court.
The Private FDR: preparation and hearing
The preparation mimics that for a court-based FDR; the parties agree a bundle of relevant documents, and both make offers of settlement. Flexibility is key; the parties are centre stage, while at court you are “competing” with the other cases in the judge’s list, for a finite amount of time.
Having read the papers, the judge will comment on the offers and give an opinion as to the outcome if the case went to a final hearing. The parties will then have time to consider this and negotiate.
If a particular issue is proving a stumbling block, the judge can provide their view on this. This is not always possible at court; often a Judge has not had the time to reads the papers sufficiently to do so and is not prepared to give a sign.
The court-based FDR offers a reasonable chance of succeeding: this is enhanced significantly in the private setting. The circumstances are far more conducive to settlement than the court process.
If the case settles, the order can then be drafted, signed and sent to the court for approval by a Judge.
If this does not happen, the private FDR judge will supply a written summary of the matter, the offers made and their indication, and the case reverts to the court system. This can be a useful reference point if you don’t reach agreement.
What are the timescales?
This is a key advantage: the timescales compared are extremely favourable. We can arrange a private FDR in a matter of weeks; the only limitations being the availability of the agreed judge and the time it takes to prepare the papers necessary to deal with the case.
It can take anything up to a year from the start of a case to reach the FDR stage at court.
What are the disadvantages if any?
The only downside is you must pay for the cost of a private FDR judge. But you must take a broad view of this: the costs of keeping a case with solicitors for anything up to a year before the court FDR are high, plus what price early settlement? How do you quantify the early resolution of the case and avoiding having to go to a final hearing.
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