Private (FDR) Judging

This is more formal than a straightforward Early Neutral Evaluation and will usually mimic the court procedure. 

The process allows you to either step away from the court process (just for this hearing) or you could have a Private FDR once you have all the financial information to hand in other processes (even traditional letter writing). Unless you agree otherwise, it’s not legally binding and any discussions cannot be used in any further court action or in Arbitration. [Although your offers to settle can be used in court later - so must be sensible and reasonable or risk costs orders against you.]

What is it used for?

• For financial cases only - for married, civil partners
• It is complimentary to the court process (or avoids it altogether)
• It can be used in Trust of Land cases (for cohabiting couples) too and where there are children’s financial provision to resolve (Schedule 1 of the Children Act)

Typical court process in a financial case for those that are married or in a civil partnership

• You and your ex will very likely need to complete a Form E (a 28-page document you complete that discloses all your finances, what you need and sets out your case along with a huge number of supporting documents that ‘prove’ your case)
• Once you’ve done this you attend a First Appointment (FDA) at court. The Judge will then direct your next steps. These usually include asking questions about the Forms E, replying to those questions and to instruct experts e.g. to value a business, value property, calculate tax. A date is set for you to come back to court with all of this information
• You will prepare offers to settle the case (these set out exactly how you see your case and the reasons for it)
• You will both set out your legal costs so far and your estimated costs for the FDR and onwards to a Final Hearing (known as a Form H)
• The court sets a date for an FDR hearing (Financial Dispute Resolution hearing)
• The FDR hearing at court is an hour long but you are likely to be waiting to see the Judge for some hours. You CANNOT choose your Judge. You or your lawyers set out your case and the reasons for it. As the Judge has all the financial information, they will give a view on how s/he would decide the case if the matter was at a final hearing. [You won’t see that Judge again.]  You have to attend court at least an hour early and be prepared to stay for as long as is necessary. The idea of an FDR hearing is that it encourages you to settle. Having listened to the Judge you have more or maybe less confidence in your own case. You and your lawyers are expected to work hard to settle things. You may go into court (time allowing) to ask for further clarification from the Judge.

NB The family court is VERY keen on Private FDRs. It will agree to adjourn the matter whilst you attend a Private FDR and it will agree to skip the court FDR in favour of the Private FDR. The court will also appoint a Private Judge (from a list of choices you make) if you can’t agree on one at the First Appointment (FDA).

Private FDRs

You both choose your Private FDR Judge - usually based on price and availability. If you can’t agree you can ask IFLA (Institute of Family Law Arbitrators) who will appoint someone from their membership. The Private FDR ‘Judge’ will have all the necessary information needed (see the process above). You or your lawyers will present your case and the reasons for it. It’s expected that you will have set out your proposals for settlement in an ‘offer letter’ to each other; then the FDR Judge is fully familiar with the way you are thinking. You will both complete the Form H so the FDR Judge knows how much you have spent on legal costs and how much you estimate you will spend if you continue onto a Final Hearing.

The Private FDR Judge will then give their view (sometimes in writing). You then negotiate around the terms s/he suggested. The Private FDR Judge is available all day to help you create a settlement.

Advantages

• It is heavily supported by the Judiciary
• You can choose your FDR Judge
• If you can’t agree on an FDR Judge the court will appoint someone from a list you provide. If you aren’t in proceedings then IFLA can appoint someone from their membership
• The court will (or should) accommodate these private hearings. The court can list a final hearing rather than you having to attend a first appointment and yet another FDR
• Speed. You can get a Private FDR Judge immediately whereas the court wait time is around 18 months
• Saves money. The court process is mired with delay and last-minute postponements. A postponement costs you money because we will have prepared plus you will have incurred a brief fee (Barrister’s costs for reading the papers and keeping the diary date free). Delay costs you money because you keep having to update your financial disclosure for each hearing
• You will find out how much you have each spent on your legal costs (the Form H) and this usually clarifies the fact that you don’t want to spend yet more money
• You have the Judge ALL day. This is an unimagined luxury and NEVER happens at court. This means you can run ideas by him/her to see if they are in line with what a court might order
• The Private FDR Judge is very experienced. Often, they have other skills like mediation or collaboration and can speak in a way that you will understand and can answer any questions - in a way that a court can’t because of a lack of time
• The Private FDR Judge will definitely have read all the papers. The court Judge (with the best will in the world) may not have done.  They usually have four FDR’s to deal with in a morning. This compares with just one for the Private FDR Judge
• It’s not legally binding - so this leaves you free to negotiate ‘around’ the Judge’s thoughts and come up with something that suits you both. (Unlike Arbitration which is legally binding.)
• It can be legally binding as I can draw up Heads of Agreement or a Consent Order which is signed off by all [it would be hard to change your mind about his later]
• Anecdotally there are high settlement rates

Disadvantages

• Cost. You have to pay for your FDR Judge (and Early Neutral Evaluator). Costs in 2022 range between £2,000 and £6,000 + VAT depending on the amount the FDR Judge has to read and their experience (as a rule KCs - King’s Counsel - are often twice or more as expensive as this estimate)
• Voluntary - so if one of you doesn’t want to do this it won’t happen
• It’s not legally binding. So, you may go to the expense of the Private FDR and reach no conclusion
• Sometimes an unreasonable person will NOT change their minds having heard from the FDR Judge and continue with their unreasonable case forcing you to either bind them using Arbitration or issuing an application at court

How do we prepare for a Private FDR?

• Make sure you have swapped Forms E, asked your questions and replied
• Complete the Form Hs (this summarises your current and likely future legal costs)
• Make sensible written offers to settle and exchange theme before the hearing
• Prepare a ‘bundle’ of documents in a searchable PDF (see Practice Direction 27 on the preparation of court bundles). You can prepare a paper bundle of documents but this will take much longer to get to the FDR Judge (Paper bundles are fast becoming a thing of the past)
• Send/email everything off to the Private FDR Judge to give them time to read it (10 days before hand is ideal)
• Be open minded. You might be completely wrong about your case