A ‘private’ FDR hearing may sound like something created for high net worth divorcing couples, but that is not the case. It can be of great benefit to all divorcing couples.
There are a number of advantages to participating in a private FDR hearing. In light of COVID-19, with physical hearings only taking place where absolutely unavoidable and the court’s immediate capacity to deal remotely with cases being limited, these private hearings are on the increase. Further, local guidance for London financial remedy court judges provides that all FDR hearings ‘‘should if possible be dealt with by way of private FDR’’ and should be conducted remotely.
The push towards private FDRs could not be clearer.
What happens at an FDR hearing?
During an FDR hearing, a judge will give both parties a clear indication of what financial orders a judge is likely to impose on if a financial settlement is not reached and the case proceeds to a Final hearing. For example, the FDR judge will give an indication about what should happen to the family home, whether there should be a pension sharing order, whether one spouse should pay the other spouse spousal maintenance and for how long or whether there should be a clean break and so on.
Outside of court, both parties will try to negotiate and agree a financial settlement with the assistance of solicitors and barristers. Anything said or any offers made in a genuine attempt to settle, will be ‘without prejudice’. For this reason, the judge at an FDR hearing cannot hear the case at a final hearing. A judge will encourage the parties to negotiate but will not and cannot impose a financial settlement.
What is a Private FDR hearing?
A private FDR hearing is one that takes place outside the court arena. Both parties will appoint and pay for an independent financial remedy specialist to act as a judge. The specialist will conduct themselves in the same way as a court judge would, in that he or she will give your client a clear indication of what financial orders a judge is likely to impose if a financial settlement is not reached and the parties will be encouraged to negotiate.
What are the advantages of a Private FDR hearing?
Flexibility
A private FDR hearing is more flexible than a court FDR hearing. A private FDR hearing can be arranged at a day and time convenient to you and your client and in accordance with your diary commitments.
In comparison, a court FDR hearing will be imposed upon your client. You will need to be available on the day and time set by the court unless there are exceptional circumstances or the parties come to an agreement to vacate and relist the hearing.
Place
A private FDR hearing can take place in a location and forum convenient to your client. Ordinarily it would take place in a solicitor’s office, in a barrister’s chamber or even in a hotel conference room. Now, as a result of COVID-19, the hearing will take place remotely and can be conducted from the comfort and familiarity of the client’s own home, from a computer, laptop, iPad or even a mobile phone. This means that your client will not be held back by self-isolation, being stuck abroad or living abroad.
Separate virtual meeting “rooms” can be set up for each party to have private discussions in, and there can be separate “rooms” for barristers. Legal advisors can also privately chat to their clients through typed messages whilst in the presence of the financial remedy specialist. Hearings can be recorded and password entry would be required.
In comparison, and ordinarily, a court FDR hearing will involve parties attending and negotiating in an often rundown court with limited or no rooms to carry out private discussions. At the moment, they are being carried out remotely, if at all.
Preparation
In a private FDR hearing, the financial remedy specialist chosen by your client will carefully read and consider all of the documents provided to him or her on the day. The specialist will have a good grasp of the issues between you and the assets and liabilities involved.
In comparison, a judge is often stretched for time. Quite often, and as we are all painfully aware, they will read the documents just before the hearing is due to start and in some cases, the judge may not have read the documents at all!
Time
The private FDR hearing specialist will be at your disposal throughout the day. He or she will be there to guide and assist you as and when you need it. If you run out of time, the parties can continue to negotiate on another day.
In comparison, a judge in a court heard FDR will not be at your disposal. As you know, they will often have many hearings to deal with on the same day and you may not receive more than one hour of their time. In addition, you will not be allocated a time to see the judge, which means that you could be called into court at any time during the day. This procedure has, however, altered because of COVID-19.
Costs
From my experience, instructing a specialist for the day will cost anywhere between £3,000 plus VAT to £8,000 plus VAT depending on experience. That said, a number of barrister chambers are offering a welcomed discount to help ease the difficult economic times people are currently faced with and because remote hearings tend to be much more efficient, saving on both time and travel costs.
When compared to the numerous advantages set out above, this is not a significant amount of money, particularly if the parties are committed to reaching a financial settlement. FDRs generally, as we all know, have a high settlement rate but Private FDR hearings, in my view, go that extra step! There’s no turning back to court based FDRs for me, if I can at all avoid them, even after we see the end of this pandemic.
Stay safe and well.
