private hearing

Many clients getting divorced find themselves in the court process to resolve financial matters. This is stressful enough but since Coronavirus reached our shores the courts have been adjourning and delaying cases due to the illness and government advice on social isolation. The court has just announced that until further notice all hearings will be by telephone and that if any oral evidence is require they will be adjourned. There have long been alternatives to court such as mediation but one option is very much more likely to come into its own during this crisis – the Private FDR.

In the court process there are usually 3 hearings:

  1. The first Appointment – this tends to be procedural and can often be done by correspondence or telephone – certainly that will be the case at present.
  2. The Financial Dispute Resolution Appointment (FDR) – this is usually a major opportunity to meet and try to settle the case at court. The judge reads all the papers and gives an independent view to the parties who then with the help of their lawyers often negotiate at some length and agree a settlement. Face to face negotiations are often more productive and the actual presence of the judge is so helpful in promoting settlement.
  3. The Final Hearing – this takes place if the parties don’t settle and can often take several days and be very expensive. At the end of that hearing the judge imposes a decision, one neither of which the parties may be happy with.

Avoiding the Final Hearing with an effective FDR is therefore very important and yet the current crisis makes that very likely that there will be no face to face hearings. Both we and the courts are therefore increasingly turning to the private FDR as a means of making good constructive progress without the huge delays that will now be in the court service. 

What is the procedure in a Private FDR?

The parties agree to pay a barrister (who often sits as a judge) or a retired judge to read their case and hold a “hearing” to offer their independent view on the likely and correct outcome. The lawyers present the case to the “judge” just as they would in court and the judge gives a view and assists the parties to negotiate a settlement. The parties do not give evidence but are fully present in court. If agreement can be reached, the agreement is drawn up by the lawyers then and there and approved in everyone’s absence by the court representing a quick and efficient solution. If agreement cannot be reached then at least the issues are much clearer for the parties and that in turn would reduce the length of any final hearing. 

So what are the advantages over a normal court hearing?

  1. Speed – the hearing can be arranged in weeks or even days rather than months or even years given the current court delays.
  2. Reliability – the partied choose the judge jointly – that is the judge they get and that judge will have read all the papers – often in the court system due to shortages  a judge will e swapped at the last moment and there will be lost or unread papers.
  3. Time – a Private FDR usually consists of the judge being booked for a day. That means that unlike in the court system, that judge is dedicated to your matter for that day and is fully available to assist the parties with their negotiations instead of having to move onto multiple other hearings.

Are there any disadvantages?

Really the only one is the cost. In the court system whilst you pay the lawyers, the judge comes free of charge. A private FDR judge will usually charge between £3000 and £8000 per day. The charge will depend on the experience and seniority of the “judge” and the complexity of the case. This may seem a great deal of money but each party pays half and the massive advantages outlined at 1, 2 and 3 above will generally outweigh the cost. For many clients they are looking for a speedy and fair solution and the Private FDR gives them the best possible chance of achieving that. We are entirely familiar with the process and can advise and arrange private FDRs.

We will be continuing to share updates as the situation around COVID-19 evolves. You can find the contingency plans that we have put in place, along with further advice, here.