This is the third in our series of blogs about the practical side of sorting out the money and property on divorce by using the court process, known as proceedings for a financial remedy. This time we are taking a look at the FDR, which is the commonly used acronym for the Financial Dispute Resolution hearing. The FDR is the second of three potential court appointments which might be necessary to get to a solution, and in many cases it is the most important stage. (It is worth pointing out that it is possible to use the first appointment as an FDR, but only if both parties agree, and if there are no outstanding issues relating to evidence or disclosure.)
The FDR is a meeting, held at court and partly in court with a judge present, at which the people involved in the dispute are under an obligation to try to reach agreement. The purpose of the FDR is to try to assist people to settle their disputes and avoid the expense, delay and stress of a court trial of the issues. Like most solicitors who are members of Resolution, we at CFLP believe that (save in very exceptional cases) a fully contested trial with both sides giving evidence, experts and barristers arguing things out, and a judge trying to steer a path to a fair result is not the ideal end to a marriage.
Well before the FDR you will have exchanged disclosure in Forms E, and you will have prepared and answered questionnaires dealing with issues arising from the disclosure, which will have been agreed or ordered at the FDA . All valuations and expert evidence will have been collected in good time so that everyone has time to digest the information. The hope and expectation is that both people will come to the FDR in full possession of all material facts about the relevant money and property, and any other relevant issues, so that they are well-placed to agree arrangements for the future if it is possible to do so.
An important feature of the FDR is that the meeting is “without prejudice”. Anything said either in front of the judge or in negotiations at court on the day of the FDR cannot be referred to if the case proceeds to a trial. This allows people to make genuine attempts to settle without fear that concessions will be used against them, and encourages people to move away from their stated positions. It also means that the judge who deals with the FDR can have nothing further to do with the case.
On the day of the hearing, you will attend court with your solicitor and/or a barrister, if we have agreed that in advance. You can expect to be in the court building for a long time, usually camped out in a small uncomfortable room whilst your legal team carry out negotiations on your behalf. It is well worth clearing your diary for the day and making sure you have things like childcare arrangements sorted out in advance.
There will be an allocated time for the hearing before the judge, but everyone is expected to be at the court several hours before the time of the hearing, to engage in negotiations. During that time, with the guidance of your solicitor (and barrister if appropriate) you will think about and make offers and proposals for settling the case, as will your former spouse. It’s worth noting that a wilful refusal to engage in meaningful negotiations can potentially mean that a costs order could be made against you.
Around the time listed for the hearing itself, everyone involved in your case will be called in to see the judge. The solicitors, or barristers, will set out the background of your case, and explain each of your positions to the judge, and where negotiations have got to. The judge will usually ask the lawyers questions to see where the issues have been narrowed, and where the parties still disagree – you are very unlikely to have to say anything in court. When the judge feels there is enough information, he/she will give what is termed “an indication”, explaining what outcome he/she would order if in the position of deciding the case. This indication is not binding in any way and is no guarantee of the outcome at the final hearing, but it is useful for concentrating everyone’s minds on the strengths and weaknesses of their case and the potential effect on the outcome at trial.
Once you have an indication from the judge, it is normal to carry on negotiations back in the small uncomfortable rooms, and often the judge will want to hear back from the legal representatives relatively regularly with an update on negotiations. If settlement is reached, then the legal representatives will draw up a document recording the agreement to be signed by all parties, and possibly approved by the judge. This will eventually be turned into a court order.
If it is not possible to reach an agreement, the lawyers will agree case management directions for the time period between the FDR and the final hearing (trial), which will be several months. Failure to settle at the FDR does not mean that it’s a downhill slope towards the final hearing: sometimes it takes people a while to come to terms with what the judge has said and any offers that have been made, and most cases do settle before trial because most people find that a settlement reached through agreement is always more acceptable, and less expensive, than one imposed by a judge.
Should you need us, CFLP will guide you carefully through this process and if you would like to discuss anything raised in this blog, do give Gail, Adam, Sue or Simon a call on 01223 443333.