The rise of private financial dispute resolution appointments
Sharon Bennett and Jamie Gaw explore the increasing use of private financial dispute resolutions in financial remedy proceedings
The financial dispute resolution (FDR) was introduced into financial remedy proceedings in 1996, initially on a trial basis, before being formally incorporated in the Family Procedure Rules (FPRs) in 2000. The FPRs largely mirror the Civil Procedure Rules 1998. However, the FDR was a novel innovation and there is no similar hearing within civil proceedings. Unlike traditional hearings, the FDR is heard on a without prejudice basis. This enables parties to negotiate freely and, with the judge’s assistance, seek to reach a settlement by consent. The ‘indication’ from the FDR judge is a one-off opportunity to hear the inner workings of a judge’s mind when considering what an appropriate outcome should be at a final hearing.
The key to a successful FDR is the ability of the judge. We have represented clients whose cases seemed incapable of settlement, yet a deftly delivered indication enabled the parties to reach a compromise. In contrast, we have experienced cases where the judge’s manner or uneven approach alienated one or both parties and set back the negotiations. It is for this reason, as well as the increasing delays in the court system, that parties are increasingly opting for private FDRs.
What makes a good FDR judge?
The FDR is a highly charged environment. Parties will often have to sit through a highly positional presentation from their spouse’s lawyer, criticism of their case and sometimes quite personal disparagement. They will then have to hear someone they have never met, expressing views about their lives.
It is a given that any FDR judge should have a sound understanding of the law. However, arguably, equally important is the depth of the judge’s experience and their ‘bedside manner.’ The parties need to feel from the outset that the judge is invested in helping them achieve an outcome. Whereas at a contested hearing a judge may appropriately berate the parties or their lawyers for the late filing of documents or bundle issues, a prudent FDR judge will ‘overlook’ these procedural slips, recognising the importance of setting the right tone. Similarly, whilst the judge may have a busy list and may not have had time to read every document, a wise FDR judge will not stress this, and will make the parties feel that their case is of the utmost importance.
The parties need to feel that they have been properly heard; that their advocate has been given the same amount of courtesy and time as the other. The delivery of the indication is critical. The aim of the indication is not to tell the parties what the outcome will be, but to explain what it should be, so they understand why they are being asked to make concessions. It helps for a judge to let someone down lightly. If a party is being asked to make concessions it makes it a lot easier if the message is delivered with respect and allows them to back down with dignity. Often it is helpful for both parties to get a ‘win’ of some sort, of course this is not always possible, but the best FDR judges always remember that, unlike traditional judgments, they are ’selling’ their indication to both parties.
The rise of private FDRs
It is not hard to see why private FDRs are increasingly becoming the norm. As a practice, over five years ago less than 25 per cent of Bross Bennett’s FDRs were private. Now between 50 to 75 per cent of our clients are choosing private FDRs. The benefits of the private FDR are manifold. First and foremost, the parties can select their judge, someone with the requisite experience, expertise and soft skills to ensure the best chance of a settlement being reached. Secondly, the judge will have sufficient time both to read in and to hear the case. Thirdly, private FDRs are usually heard more quickly than court FDRs; there is also no risk that the FDR will be adjourned at short notice. While private FDRs incur the additional costs of the judge, these are frequently less than the costs associated with a delayed court FDR. Ultimately, whether court based or private, over 25 years on, the FDR continues to provide an effective means of resolving many financial disputes thanks to the unique role of the FDR judge.
Sharon Bennett is a partner at Bross Bennett Family Law Solicitors and a part-time deputy district judge and Jamie Gaw is a partner and mediator at Bross Bennett