Why opt for a Private FDR?

A private FDR is held on the same principles as a court-based FDR and carries the same value but also has several advantages, as there are drawbacks with the court experience.

Even when an effective FDR takes place in court, there is limited hearing and judicial reading time, as it will be one of several cases in a busy list. Court FDRs are usually listed for only an hour.

Since Covid, the courts have had to adjourn some FDRs which can mean loss of momentum and opportunity for settlement, also long delays as it may be months before the case is re-scheduled. This in turn delays trial and therefore closure. It also adds to costs. Parties generally have to wait a long time for their case to be finalised if they do not reach an agreement. The wait is just longer now.

Adjournment by the court may happen because historically, FDRs were bloc-listed at the same time (e.g. 3x1 hour FDRs at 10am) but telephone and video hearings post Covid, are set up at specific times and generally take longer because of technical arrangements, so usually less of them can take place in a day. When listed in the court building at the same time, there is delay while parties wait for their case to be heard and hearings tend to run over in time. Even where FDRs are taking place in court buildings again, there are less of them whilst social distancing practices require gaps between cases.

There has been a Covid triage system in most courts too, where Judges review hearing lists to decide if cases can proceed safely and how they will be heard. This can lead to adjournments at short notice. Some hearings adjourned in Spring 2020 and re-listed for the next available slot which might have been that Autumn/Winter, even faced being cancelled again.

The other recent difficulty is court offices operating remotely, so being deluged with emails,applications and documents for hearings. Due to the volume and backlog, these do not always reach files in time and that plus less time for Judges to read papers, may mean FDRs being ineffective.

Problems avoided 

These issues are avoided with a private FDR because:

  • There is no delay and an ‘FDR day’ (or other agreed time-frame) is reserved for this case alone.Parties receive longer, dedicated time with the private FDR Judge who will be fully prepared and familiar with their documents.
  • Parties make a conscious choice to have a private FDR which takes place at a time and place of their convenience, demonstrating joint commitment to finding an agreement.
  • There is a fee payable for a private FDR but it is a cost-effective process because of increased scope for agreement and at the very least progress, when so much more time is invested in it. Settlement saves the very significant cost of proceeding to trial. As the FDR fee is for both parties and shared, they are paying half each only, unless of course they agree otherwise.
  • If parties agree terms at the private FDR, they may sign a written agreement, heads of agreement or a drafted consent order drawn up by their legal representatives that day and their Solicitors will file a drafted Consent Order with the court for approval to conclude the matter.
  • The court timetable resumes if no agreement is reached, so there is no disruption.