What will happen at a Financial Dispute Resolution (FDR) hearing?
Financial Dispute Resolution (FDR) is the second court hearing out of three in financial cases arising from divorce. The purpose of the hearing is discussion and negotiation led by a Judge who is there to help you and your spouse reach a financial settlement without going to Final hearing. The FDR hearing is almost unique in English law as the Judge does not adjudicate or make findings at the hearing, and can only make Orders by consent. The role of the Judge is to act as an in Court mediator and predictor; by saying to you and your spouse what he believes would happen, on the available information, if the case were to go onto a Final hearing.
Do I have to attend?
Yes. You must attend at all court hearings concerning financial matters. You can be excused attendance if you are abroad or there are other exceptional reasons, but leave of the court is required in advance. Please tell us immediately if you think you may have difficulties in attending, with reasons.
A typical FDR hearing will last for one hour and you should aim to attend Court one hour before the hearing to meet with your legal representative who will usually be a Barrister. As the FDR hearing is specifically designed for discussion and negotiation it is suggested that you have a specialist family law advocate (a Barrister) to represent you to present your case. Barristers will be used to appearing in Court on family law cases on a daily basis and will be aware of the style of an individual Judge. It is important to note that there are geographical differences from Court to Court and differing styles from Judge to Judge. For example some Courts’ and Judges’ are ‘pro’ clean break, or ‘anti’ ongoing spousal maintenance, whilst others will not end spousal maintenance when there are minor children to the marriage. Your Barrister will be able to advise you as to these differences based on their daily Court experiences, offer strategic input and negotiate your case on your behalf. We will carefully allocate and instruct a Barrister for your case on the basis of their specialist skills according to the nature, complexity and financial value of your case. We often suggest that Barristers are consulted at an early stage for tactical input and advice.
Although cases are usually listed for one hour, there is much flexibility in the procedure and it is quite usual after the Judge has given some initial indications for the case to break for discussions outside of court, perhaps then returning to the Judge for further guidance and assistance. You should therefore expect to set aside the entire day for these discussions. It will be well worth it if you can settle.
The procedure in Court is as follows. A Judge will hear from the legal representatives, in a small private room, and attempts to encourage a financial settlement. Although you and your spouse will be present, neither of you will be called upon to give evidence, but you will listen to the arguments advanced on your behalf by your Barrister. The Judge will have read the details of your respective positions beforehand in a document called a Position Statement. This document will be prepared by your Barrister and will include details of any offers made to settle the case. Once the Judge has read the Position Statement, he/she will indicate how the case is likely to play out and which of the offers he prefers, or indicates other settlement terms that he considers fair. Judges will often give an indication in relatively wide terms of how they see the case and may give a range of figures for an outcome. This is because there is much discretion as to what could be regarded as a fair outcome.
You and your spouse and your legal representatives will then be encouraged to go away to negotiate to try and reach an agreement. Successful negotiations and agreement being reached can mean that you and your spouse can walk away from court and begin your new lives. Unsuccessful negotiations resulting in no agreement being reached means that the case will continue to the third and final stage, the Final hearing. When this happens legal costs will mount and several months later, a battle will be fought out in court before a different Judge where a final decision will be ordered that is binding on the both of you.
It should be known that as a general rule of thumb it is said that the costs of going to a Final hearing are generally double the amount of the costs that you have incurred up to the FDR stage. So if you have incurred costs of £10,000 by the time you reach the FDR hearing, the costs you can expect to pay for a Final hearing will be £20,000.
It is also important to note that the Judge cannot impose a final order at a FDR hearing but can approve an agreement that you and your spouse have reached yourselves and both consent to. At a FDR hearing the following three categories of order are possible:
An order adjourning the hearing to a further FDR hearing;
A Consent Order disposing of the case where agreement is reached and you both consent; or
Directions to progress the case to its Final hearing and other relevant directions.
If agreement cannot be reached at FDR, the Judge hearing the FDR has no further involvement with a case after the FDR appointment. The reason for this is that the parties are encouraged to negotiate freely at FDR without fear that they will prejudice their positions if the case goes to a Final hearing. The hearing is completely privileged which means that nothing said at the FDR hearing can be referred to subsequently in other court proceedings, such as a further FDR hearing or a Final hearing.
To achieve the best outcome at a FDR hearing it is very important that you and your spouse adopt a “cards on the table” approach if the FDR appointment is to have any success and come to Court expecting to settle. You should prepare in advance by thinking through what terms would be acceptable to you as a settlement if you were to settle on that day, and you will be given advice and guidance from your legal team on the day. There are significant advantages in terms of cost and the personal relationship with your spouse in documents being signed on the day whilst at court. You should however be aware if settlement is reached on the day of the FDR hearing and notified to the court, it is very difficult then to withdraw from the settlement a couple of days or weeks later.
The form of the FDR hearing will depend on the style preferred by the individual Judge with many variations of style and outcome. Often a lot of pressure is often brought by Judges on parties to settle, including compromising on terms. You should prepare yourself accordingly. Some people find it is helpful to bring a friend along, even though that person cannot go into the court room itself. The key to an effective FDR hearing is to know the minimum terms that you are prepared to accept, being prepared to compromise and looking at the case in objective terms, as this is how the Judge will approach the case.
What happens if we do not settle?
If it is clear to the Judge that the case is unlikely to settle, he will set the matter down for a final hearing and order directions, which your Barrister will be able to advise you on. Unless the case is straightforward, the final hearing is likely to last at least one day, probably longer. There are very long waiting lists for the final hearing and you can often wait 3-6 months from a FDR hearing for a Final hearing.
As the Final hearing approaches, it is quite normal for attempts again to be made at a settlement. These attempts are usually driven out of a fear of going to court, a fear of a particularly adverse outcome and sometimes by an inability of one party or both to continue to fund the case. Very few cases reach a final hearing, and very few cases need a final hearing. In all our case we do our best to settle cases for our clients without having a final hearing.
Finally, tips for attending at Court
What to wear – There are no hard and fast rules about what to wear in court. However, the court is a formal place and you should dress accordingly.
Inside the courtroom – In family law cases the courtroom is usually a room with a large table where the Judge sits at one end and the parties and their legal representatives sit at either side of the table. In general the atmosphere is far less formal than most people expect and your legal representative will do most of the speaking for you.
At a FDR hearing you will be rarely asked a question directly by the Judge, but if you are, you should refer to the Judge as “Sir” in the case of a male Judge, and “Ma’am” (to rhyme with Pam) in the case of a female Judge. Speak clearly to the Judge and do not:
- address comments to other people in the courtroom, such as your spouse or their legal representative
- point or use abusive language
- raise your voice or shout
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