When an application is made to the Court to address the financial aspects arising from the breakdown of a marriage, the court will list it for a hearing. The First Hearing which is a gatekeeping hearing is called the First Appointment and the second hearing which is where most cases settle is called an FDR (Financial Dispute Resolution Hearing). If parties do not reach a settlement at this hearing the Court will list it for a Final Hearing.
Private FDR also known as pFDR
Family proceedings can be very stressful and when you add a long, drawn-out process to the mix it can inevitably increase the stress on parties involved. Over the years there has been a significant back log in Court hearings and parties often find themselves in a position where they are having to wait for over 6 months for a court hearing. To avoid having to wait parties can choose to have a Private FDR. There has been an uptake in parties choosing to engage in pFDR in order to try and bring matters to a swift conclusion.
Sir James Munby, the former President of the Family Division, describes pFDRs as;
‘A private FDR is a simple concept. The parties pay for a financial remedy specialist to act as a private FDR judge. That person may be a solicitor, barrister or retired judge. No additional qualification is required. The private FDR takes place at a time convenient to the parties, usually in solicitors’ offices or barristers’ chambers, and a full day is normally set aside to maximise the prospects of settlement. It takes the place of the in-court FDR.’
Advantages of a pFDR
One of the main advantages of a pFDR is that it allows parties to have significant flexibility in comparison to a court-based FDR. The parties can choose the date, time and venue for the hearing and it can take place sooner than a court-based FDR. Parties have the flexibility with the choice of the judge. The parties also have control over the timetable for preparation and the duration of the hearing, which can be tailored to the complexity of the case and the parties’ needs.
Having the choice to select your own pFDR judge allows parties to ensure the judge has the judicial expertise to deal with their matter. In advance of the hearing the judge is provided with all of the relevant documentation, the judge has time to prepare, and this can often result in a more thorough and considered indication. Unlike court-based FDRs, where judges may be overburdened and under time pressure, the private FDR judge is dedicated solely to the case for the day, allowing for a more detailed and nuanced evaluation.
Although there is an upfront cost for the private judge’s fees, private FDRs can be more cost-effective in the long run. They often lead to earlier settlements, thereby avoiding the protracted delays, multiple hearings, and escalating legal costs associated with court proceedings. The ability to resolve matters swiftly can also reduce the emotional and financial strain on the parties.
The voluntary and collaborative nature of a private FDR, combined with the focused attention of an experienced evaluator, often results in a higher rate of settlement. During a pFDR the judge will give an indication on the likely outcome and parties are expected to take this on board and try and reach an agreement. In addition the judge remains available throughout the day to assist with further indications or clarifications, facilitating ongoing negotiations.
The private FDR process is generally less adversarial than court proceedings. The environment is more conducive to constructive dialogue and creative solutions, which can be particularly beneficial where ongoing relationships (such as co-parenting) are involved. Parties are more likely to feel that they have participated in and agreed to the outcome, rather than having a decision imposed upon them.
Because the process is by consent, parties have greater latitude to negotiate bespoke arrangements that may not be available in a court-imposed order. This can include more flexible or innovative solutions to the division of assets or ongoing financial arrangements.
Disadvantages of pFDR
The indication given at a pFDR is not legally binding. Any agreement reached must be formalised by way of a consent order and approved by the court to become enforceable.
Both parties must be willing to engage in the process and negotiate in good faith for the private FDR to be effective.
A judge at the pFDR cannot order directions or make substantive order, if the parties do not settle, parties will need to return to court for further directions and progress their case to a dial hearing. This can result in duplication of effort and additional procedural steps.
For a pFDR parties will need to pay for the financial remedy specialist. Costs can range in the region of £5,000 – £10,000 + VAT. In comparison if parties attend the FDR at Court a fee would not be paid for a financial remedy specialist. However as detailed above in the long run this initial cost often does outweigh the ongoing costs of legal fees.
Conclusion
A private FDR offers parties in financial remedy proceedings a flexible, confidential, and expert-led forum to resolve disputes efficiently and amicably. It is particularly advantageous in complex or high-value cases, or where privacy and speed are paramount.
How we can help
At BWK our experienced family team can advise in relation to pFDRs.
Please contact one of our family law experts via e-mail at info@bwksolicitors.co.uk or telephone on 01494 773377.
We are currently offering 30 minutes free legal advice when you book an hour initial consultation. Appointments can be arranged for you at any of our offices, or virtually at your convenience
