An FDR is a Financial Dispute Resolution hearing timetabled before a Final Hearing / Trial. It is a without prejudice and confidential court hearing within financial proceedings on Divorce. It is held for the purposes of discussion and negotiation and designed to narrow the issues and promote a fair settlement, giving the parties an opportunity to talk freely and the FDR Judge providing an indication of a reasonable, likely outcome. Parties are expected to have exchanged disclosure and proposals for an FDR to be effective.
Judges do not provide legal advice. They do not hear evidence or make findings at FDR and the indication given is not binding on the parties, nor can an outcome be imposed on them at FDR. The indication is intended to assist their negotiations, with the aim that they reach their own agreement.
Many cases settle at FDR stage or shortly afterwards, saving money, time, stress and ongoing uncertainty.
A party may disagree with the indication given and / or consider that after hearing all the evidence at trial, a different outcome might be ordered. The risk with that approach, is that the court has discretion in these cases so there is no guarantee or certainty of the final outcome. It is also very expensive to proceed to trial if there are legal fees to pay and long term contested proceedings inevitably cause increasing tension between parties meantime. Then there is the delay, particularly post-Covid. It could be several months after FDR before a trial is listed, even longer since the pandemic slowed courts down.
In court,the Judge can
approve a settlement reached at FDR and make a final order; or make directions
to prepare for trial, if it does not settle. The FDR Judge having expressed a
view, is excluded from further involvement including the trial itself and the
FDR documents are removed from the court
file after FDR so they are not seen by the trial Judge.
Generally if a case settles, a
Consent Order is sent to the court for approval and considered by a Judge on
paper. The court may have questions and may not approve the order, regardless of
what was said confidentially at FDR, if settlement is after that. This may
happen after a court-based or private FDR and is not a reflection on validity
of the FDR view. The court is not a rubber stamp, so it will still carry out a
broad appraisal of the agreement and has discretion to approve it or not. Any
questions may be dealt with by correspondence or the court may list the matter
for a short hearing. The court’s objective however is to deal with cases
justly and proportionately, also to encourage settlement, so if parties have
reached a reasonable agreement, especially with the benefit of independent
legal advice (or the opportunity to take it) and following an effective FDR or
some other ‘dispute resolution’ process, it is likely to be approved.
A private FDR ‘Judge’ is not sitting as an appointed Judge in
court and therefore cannot make an order, so the parties will simply revert to
the court for approval of their agreement or for directions to be made
(preferably agreed) to time-table the case to trial.
Pre-Covid, FDRs were
held in court with parties and any legal representatives present, but since the
23rd March 2020 they have been held by telephone or video depending on the court. Some
FDRs have resumed in courtrooms if social distancing can be achieved. Private
FDRs take place in the same way, in person with all present or remotely, by
telephone or video.