It is a fallacy that all disputes on divorce are resolved by having to go to Court. During the Covid-19 lockdown, parties can still engage in mediation albeit online, and methods like arbitration can be a very effective forum in reaching a settlement (see our blog on arbitration here). For those who want to resolve finances on divorce without the acrimony of a day in Court, a Private Financial Dispute Resolution (FDR) Hearing could be right for you.
When parties issue financial proceedings at Court, after a short hearing to determine directions and a timetable, the second hearing is usually an FDR Hearing. The FDR Hearing is intended to promote early settlement, designed so that parties can continue negotiations at Court, using the Judge as an assistive tool. The Judge will give an indication of the likely outcome should the matter proceed to a Final Hearing.
The unfortunate reality is that Covid-19 has further increased the burden on Family Courts and rendered them heavily overstretched, with Judges limited in time and resources to consider cases in depth. If you issue proceedings at Court to resolve your finances, the Court will place you on a court-ordered timetable, and the pandemic means parties should not expect a hearing date soon. This can leave parties feeling trapped in the limbo of a pending divorce settlement.
A private FDR Hearing entirely reflects the process of a Court FDR Hearing, and has the same legal standing, meaning you would not have to attend both. You can arrange a private FDR Hearing whether you have not yet issued court proceedings, or if you are already in the realms of a court-ordered timetable as you can apply to adjourn proceedings pending the outcome.
Private FDR Hearings work in a way to suit you. Parties decide the location for the Hearing, and a time and date to suit everyone. This means you could agree on a location much nearer your home, and a time such as an evening or weekend if you have a busy work schedule. During lockdown restrictions, private FDR Hearings can also be held virtually from the comfort of your home. Your solicitor, barrister, and any other parties to the Hearing can sign into the virtual private FDR Hearing from their respective locations.
In private proceedings you choose who you wish to act as the “Judge”, somebody with sufficient resources and expertise to digest the complexities and intricacies of your case in-depth, contrasting with the Court where a Judge will often have back to backlisted hearings.
Private FDR Hearings have been reported to have a 90% success rate, which is higher than Court FDR Hearings.
There are of course limitations, and private FDR Hearings have seen their share of criticism from those opposed to the idea of the “privatisation of justice”. The cost of private proceedings will also be a financial barrier for many. They can be expensive, and the cost would have to be carefully balanced against the expense of a Court FDR Hearing. If a case is not settled at a private FDR Hearing, the matter will have to return to Court for a Final Hearing, which also means you will be risking wasted time and costs.
The most appropriate forum for you will depend on the facts of your case, and anyone contemplating or pursuing a divorce should seek legal advice at an early stage.