Private FDRs: a good idea, but sadly not for all

Divorce|March 5th 2019

I had a brief exchange on Twitter the other day with a certain eminent family lawyer, who was extolling the virtues of private Financial Dispute Resolution Appointments, or ‘private FDRs’ for short. As we will see in a moment, private FDRs are in the news at the moment (my Twitter exchange may not have been a coincidence), and therefore I thought I would devote a post to them, despite having written about them here in passing previously.

For those who don’t know, an FDR is a hearing that will usually take place fairly early in the progress of a financial remedies application. As I said in a previous post, it is ‘designed to enable the parties, with the assistance of the judge, to identify and seek to resolve the real issues in the case, at a time and in a manner intended to limit the overall financial cost for the parties, to reduce delay in resolving the case and to lessen the emotional and practical strain on the family of continuing litigation.’ In other words, it is an attempt to settle the case by agreement, with the assistance of the judge.

The FDR idea is not limited to financial remedy cases. A similar hearing takes place within the procedure for private children applications. There, the hearing is called a ‘First Hearing Dispute Resolution Appointment (‘FHDRA’). As the name suggests, a primary purpose of the FHDRA is to see if the dispute can be resolved by agreement, usually with the assistance of a Cafcass officer.

So what is a ‘private FDR’? Well, instead of being held by a judge in court, it is held before a specialist family lawyer, usually in their office or chambers, upon the agreement of the parties, who pay for the lawyer’s services.

As I said earlier, private FDRs are in the news at the moment, and their primary advantage over court-based FDRs was explained by an article in The Telegraph last Saturday. Now, I haven’t read the whole article (for which registration is required), but the (slightly misleading) headline read: “Long court delays lead to boom in private divorces”. Of course, there is no such thing as a private divorce (yet, at least!) – what the article was referring to was private FDRs, as it explained in its second paragraph:

“Increasing numbers are paying for both financial dispute resolution (FDR), in which a retired judge gives an indication of the eventual outcome, and arbitration, which is quicker, more personalised and deemed more civilised than attending court.”

I understand that private FHDRAs are also a thing, in proceedings relating to arrangements for children.

So what we have here, as that eminent family lawyer said, is the “privatisation of family justice”. She found private FDRs to be helpful for clients, comprising “the right blend of self-determination & firm quasi-judicial steer”. I asked her how much they cost. She did not give a figure, only saying that: “It varies; and obviously to be counter-balanced against the cost of having a court-based FDR”. The latter point is true, but only of course if you are paying to be represented at court. My guess is that the cost of private FDRs goes into four figures, putting them out of the reach of litigants of modest means.

Now, we all know that the family courts are facing huge issues, with the upsurge in the number of private law applications, the proliferation of litigants in person and the reduction in resources. Delays are a real problem for all litigants.

Anything that offers litigants a way to have their cases dealt with more quickly must be welcomed. And if, as anecdotal evidence I have seen suggests, private FDRs have a higher settlement rate than court-based FDRs, then that is also a very good thing.

But of course it is not all good news. Private FDRs, private FHDRAs and arbitration (for both financial and children issues) all come at a cost. Litigants on benefits and low incomes are priced out of these innovations, and left to put up with the problems that the better off avoid. Along with the lack of legal aid representation they are another example of our two-tier family justice system, in which the level of service you can get is determined by your means.

I’m sorry, but that is not the kind of family justice system I want to see.

 

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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