Where parties have been unable to reach an agreement between themselves, through mediation or via solicitors, because there are one or more areas of dispute, they may feel that having those issues adjudicated by a Judge would assist negotiations. In which case, rather than issuing contested court proceedings, they may choose to participate in an Early Neutral Evaluation. This process is also referred to as a Private Financial Dispute Resolution Hearing (Private FDR) because it mirrors a Financial Dispute Resolution Hearing (FDR) that would take place within contested court proceedings.
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In a Private FDR the parties choose who will be their Judge. The Judge will usually be a Barrister or retired Judge and will be chosen because of their particular knowledge or expertise. The Hearing can be arranged at a time convenient to the parties, usually in Solicitors’ offices or Barristers’ chambers.The Judge considers the paperwork in advance of the Private FDR Hearing, hears the parties’ representatives and gives a neutral evaluation of the likely outcome. Like a Judge at a Court FDR, the evaluator’s role is to facilitate the parties to reach an agreement.This form of alternative dispute resolution is highly regarded by sitting Family Judges because it frees up Court time for cases where there are no prospects of settling. If parties are already within contested Court proceedings but feel they would benefit from a Private FDR then they can ask the Court to adjourn the proceedings so that this can take place.
What are the advantages of a Private FDR over a Court FDR?
- The Courts are busy dealing with many cases which can often mean cases are not listed for a Court FDR for a number of months. This can cause delays and lead to increased costs. A private FDR can take place as soon as the parties are ready.
- A Family Judge sitting at Court will often have several FDRs before them that day and will only see the file on the morning of the hearing whereas a private FDR judge will have the papers considerably in advance of the FDR hearing.
- At a Court FDR, a Judge will have several cases to see and only a limited time allocated for each case whereas a Private FDR Judge will be available for a full day to maximise the prospects of settlement.
- The Private FDR can take place at any location agreed by the parties, can take on any date agreed by them and can be dealt with at the parties’ pace. The parties can go in and out multiple times.
- On balance, data suggests that a private FDR hearing has a very high settlement rate in comparison to a court FDR hearing.
What are the disadvantages of a Private FDR over a Court FDR
- The Private FDR Judge must be paid for by the parties. The fees charged by Private FDR Judges range from £1,500 - £10,000 subject to the level of seniority.
- A private FDR is voluntary, and parties must both agree to attend a private FDR. If one party decides not to attend the private FDR, there are unlikely to be any consequences. Whereas if a party refuses to engage in a Court FDR there are likely to be cost consequences.
What happens after a private FDR hearing?
If the parties are successful in reaching a settlement at a private FDR hearing, the agreement will be set out in a court order without the need for a further hearing. The draft order will be agreed by the parties and then filed with the court for the court approval. If an agreement is not reached the parties will have to issue contested proceedings or, if proceedings were adjourned for a private FDR, they can ask the Court to list the case for a final hearing.
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