FDRs In Divorce

The FDR is the judiciary’s method of encouraging couples to reach agreement about their finances without fighting on to final hearing. It originates from commercial litigation where an arbitration hearing was found to result in settlement in a reasonably high proportion of cases.

If the parties are able to settle their differences before an FDR hearing by way of telephone calls/letters between the lawyers, or roundtable meetings, then they would naturally wish to do so ; however, for those who cannot achieve that closure for whatever reason, the FDR is a valuable chance for the divorcing couple and their lawyers to concentrate on the real issues at the heart of the case ; it comes after the information-gathering stage and when all of the relevant facts and figures are on the table.

Prior to the hearing, the couple have had to exchange their proposals for settlement. This really propels them towards thinking about solutions to their matrimonial money issues, rather than focusing on the problems which may have occurred.

At the hearing, it is usual for both parties to turn up with their advisors well in advance of the time listed, for negotiations. There are some cases where negotiations before the door of the court do not take place ; these are usually those cases where the parties are very polarised or where there is a complex point of legal principle involved which would benefit from the judge’s comments before talking further.

In most cases, the negotiations start straightaway. Offers and counter-offers are made, often with the result that a settlement is possible before even seeing the inside of the judge’s chambers! If that is so, the judge is told of the agreement and approves it (it is rare for a judge to refuse an agreement, unless it is manifestly unfair to one party).

If the talking before the door of the court does not result in a settlement, then the couple and their advisors duly go in to see the judge. The couple themselves do not give evidence, but the judge will have from both sides a summary of their positions and the relevant issues, along with details of their without prejudice offers and counter-offers.

The judge will then give his or her view of the case ; the purpose of this is to convey to all concerned the likely outcome if the case were to fight on to final hearing. There is nothing so salutary as hearing from the horse’s mouth, as it were, how the judge perceives a case ! After all, the couple themselves are not impartial observers and the lawyers concerned are putting their client’s best foot forward.

After hearing the judge’s view, it is customary for the parties to go on negotiating, often for many hours in order to reach a settlement ; after all, why spend all that money on the lawyers and barristers only to leave court without agreement?

There are occasions when judges do not give much guidance or where the parties remain entrenched and wish to fight on, but the courts are keen for couples to understand that there are no “winners and losers” in matrimonial cases (apart, some would say, from the divorce lawyers) and that they really should the ones to structure their own financial futures as much as possible.

Really thorough and detailed preparation for the FDR hearing – along with a positive attitude – can make this hearing a costs-saving exercise for all, without a further day or two in court at a later date.

Of course, the McCartneys did not reach a settlement at their hearing but since the issues appear to have been narrowed considerably, there is still every likelihood that the repellent and expensive prospect of fighting on to final hearing will be a sufficient disincentive to encourage an agreement in the near future.

Published 15/10/2007. The author of this article is Yvette Rooke