The Private FDR: why bother?

The Financial Dispute Resolution (FDR) is the second hearing of an application for a financial order. The FDR is a key hearing where, unlike any other, the judge is made aware of the "without prejudice" proposals and counter-proposals made in the matter and can give an indication of what sort of outcome s/he feels might occur at a final hearing.

The problem with court-based FDRs is that because of over listing the judge frequently does not have the time to deal properly with the hearing. The judge may not have read the case file, or even simply counsels' notes, to give an indication. Moreover there can be no guarantee that the judge dealing with the case has any real matrimonial experience. It's a lottery: you may get a deputy district judge whose practice is personal injury.

In a private FDR the parties choose their judge, whom they pay privately, ensuring that the individual has the experience needed for the matter. The judge may be a solicitor, barrister, QC or a retired judge depending on the experience needed.

Rather than rubbing shoulders with a host of other FDRs there will only be one matter for the private FDR judge to focus on and s/he will have read the papers in the matter.

The private FDR is flexible. It can be arranged swiftly in contrast to a court FDR which is at the mercy of listing backlogs. It can be at a time and date to suit the parties. It could even be in the evening or at a weekend. You can select the venue. Rather than struggling to get an interview room at court, the venue will have a room for the judge and a conference room for each party's team.

The disadvantage is the fact that you are paying for your judge. However this should be seen in context. If a court-based FDR is ineffective and fails to bring about a settlement one has significant costs all the way to a final hearing whereas there may be more chance of a private FDR bringing about a settlement given its advantages. A private FDR can be something of an investment in the circumstances.

The respective lawyers for the parties present the case as if in court. The judge indicates the settlement figure which s/he has in mind. The parties then have all day in which to negotiate. If agreement is arrived at then a draft order can be drawn up and subsequently submitted to the court as a paper application without further attendance at court of the parties or their lawyers.  

What happens in the unlikely event that the matter doesn't settle? Normally one arranges a mention hearing shortly after the private FDR so that a final hearing can be listed as quickly as possible.