11 October 2018

The 'Private' FDR – the way ahead in modern family dispute resolution


Vanessa Mitchell
Associate | UK

#ModernFamilies

Let's start at the beginning: What is an FDR? It is a court appointment (attendance is compulsory) for parties to seek the advice of a Judge regarding the likely outcome of the case and to try to negotiate an agreement. It takes place after the parties have provided full and frank disclosure of their financial position and so they each have a good understanding of what is available to divide and the crucial issues in the case.

FDRs are undoubtedly are an excellent idea; encouraging parties to negotiate a settlement that they are satisfied is fair, rather than having it imposed on them after an expensive and stressful trial. However, unfortunately the reality can be different. The Courts are overstretched and under resourced and so the time allocated may not be sufficient to deal with the relevant issues in the case. Furthermore, the Judge may not have experience of the particular issues relevant to the case and so cannot easily assist.

However, there is an alternative: the Private FDR, recently endorsed by the former President of the Family Division, Sir James Munby.

The concept is the same – you ask an experienced Judge (or barrister, solicitor or retired Judge) to give you their 'sneak preview' in the hope it helps to settle the case. There are many advantages to the 'private' FDR:

1. Choice of Judge: Parties can agree on the appropriate 'Judge' for their case, and knowing that they have had a direct involvement in the choice of Judge often inspires confidence in what they will have then to say, which encourages negotiation;

2. Time: The parties choose the day and time for the FDR; it can go on all day if they want. Furthermore the Judge will have had time to read all the materials in advance;

3. The parties are voluntary participants: As per Sir James Munby: parties have a 'voluntary seat at the negotiating table rather than a sense of being dragged there' which can increase their chance of playing an active role in negotiations.

4. Investment in the process: A private FDR does require the parties to have invested financially in the process, but this often means they take it more seriously.

5. Location: The day will usually be spent in the comfort of solicitors' offices, where everyone has their own room, documents can easily be typed up and printed off, and where parties can freely discuss proposals for settlement without fear of being overheard (such as in the public waiting rooms in most Courts).

6. Issue led: Where parties have reached agreement in some areas but not others, they can direct the Judge to the key areas in dispute.

7. Flexibility: In the unfortunate event a settlement appears to be far off, the parties may want to ask the 'Judge' to take on the role of mediator, and they will then become more actively involved in trying to broker the deal.

An important part of Sir James' endorsement of private FDRs was to make it clear that they can replace the Court-based FDR, and there is no longer a need for clients to attend both – freeing up Court resources and Court time for those cases which need it.

Private FDR's have a very high settlement rate. Everyone has invested in the process and wants to come out of it with a resolution.

If you do not want to wait 6 months for the NHS GP (or cannot get an appointment on a date that suits you), then what do you do? Book an appointment with a private GP. Why not do the same with your financial remedy proceedings, and be more in control of the process. It is the way forward, and Withers have extensive experience in organising and resolving disputes in this way.

Vanessa Mitchell Associate | London

Category: Article