Private financial dispute resolution meetings

What it is

The private FDR (otherwise known as Early Neutral Evaluation) has been gaining popularity over the past few years. In March 2020 a new protocol and guidance was issued for the Financial Remedies Courts which positively encourages the use of private FDRs, and suggests that these should take the place of court hearings provided a robust process and suitably qualified evaluator is used.  In the current situation where the courts are struggling with workload and may take some time to get back to normal, the use of private FDRs is becoming more popular.

Private FDRs have a very high rate of settlement of cases without the need for a court hearing.  

In the unlikely event that the case is not settled at private FDR, then an expedited process through the court system can be requested, or there is an option to have matters decided by an arbitrator.

My role in the private FDR is to act in a similar way to a judge in helping the parties and their solicitors to reach agreement, by indicating the approach a court would be likely to take if the matter went to a final hearing, and helping to explore options for settlement.  I have over  20 years experience of sitting as a Deputy District Judge (with specialist tickets for complex finance cases and private law children cases) and working as a family mediator, which makes me particularly qualified for this role. 

The objectives

a)    To reach settlement at the earliest possible moment with the benefit of full information and advice from solicitors

b)    to avoid the necessity of the court process, and save time and costs accordingly

c)     If the private FDR does not settle the case and court proceedings have to be issued, to fast track that process to a final court hearing or arbitration, thus avoiding duplication of costs or delay.

d)     To keep the parties in control of the process, and give them choice of date, venue and expert to conduct the FDR.

e)    To give the parties an alternative to mediation where they may feel the need for the support of their solicitors to deal with the level of complexity or power imbalance.

Process

Before a private FDR is arranged, the parties’ solicitors will have exchanged full financial information in Form E, have answered any questionnaires arising, and have obtained any expert or valuation evidence necessary.  A chronology and statement of case for each, an agreed schedule of the financial position, together with copies of settlement offers would be produced, exactly as in the court process.

An FDR meeting would then be arranged with clients and solicitors present, and this may take all day if necessary to reach settlement.  

When agreement is reached at a private FDR, the solicitors may be able to draw up and obtain signatures to a consent order and financial summary at the meeting, which could then be submitted to court for approval.

If for any reason agreement is not reached, then the parties would apply by consent for the court to list the matter for final hearing, hopefully avoiding the need for a First Directions Appointment or court held FDR hearing.  Alternatively an arbitration hearing may be agreed.

Private FDR meetings can be held at a venue to suit the parties, or can be hosted on Zoom.  The time required for the meeting and any preparation will be dependent on the level of complexity involved, and costed accordingly.  Fixed prices can be agreed.

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