In a series of blogs about the process of getting a financial remedy through the courts in the context of divorce or dissolution, we take a look at each stage in turn.
The FDR is more like a “meeting” than a “court hearing” and both parties are obliged to at least try to reach agreement. Parties will therefore be expected to come to court ready and prepared to negotiate and will do so in front of a judge in court, and outside of court between themselves (or through their solicitor or barrister). FDRs are often effective at reducing cost, stress and delay by at the very least encouraging parties to narrow the issues in dispute ahead of the Final Hearing.
One way that the FDR encourages parties to discuss settlement options is to classify all discussions at the FDR as “without prejudice” which means that they cannot be referred to if the matter proceeds to the Final Hearing. This means parties do not have to worry that if they make a big move from an earlier position that this will be held against them, thus encouraging movement from entrenched positions that have stalled negotiations previously. Because of this, the judge who deals with the FDR cannot then deal with the Final Hearing.
FDR hearings can be quite long days so that they can be as constructive as possible. We would advise clients to ensure that they have planned to be at court the whole day, for instance by making arrangements for children to be picked up from school, rescheduling any other appointments they may have had in their diary, and ensuring that they have paid for adequate parking if applicable.
Parties should arrive at the court at least an hour before their scheduled hearing time. Negotiations will start, and at the time of the hearing, the parties will be called in before the judge to set out their position and update the judge as to progress. If parties are represented by a solicitor or barrister, they will usually not have to speak in court. The judge can offer an “indication”, which is what they would order if they were being asked to decide the case at that point. This indication is not binding, and it does not necessarily mean this is what a different judge would order at the Final Hearing, but it does help concentrate the parties’ minds. Parties usually try to continue negotiations outside of the court room after the judge has given their indication and the judge may call the parties back into court to give progress updates.
If settlement can be reached, the parties’ representatives can draw up the agreement in the hope that it will be approved by the judge on the same day. This will turn it into a “court order” which will be binding on the parties.
If agreement is not reached at the FDR, the judge will make directions for preparation for the Final Hearing (which is usually at least three months’ after the FDR). Negotiations can be continued right up until and at the Final Hearing to see if a settlement can be agreed without it having to be imposed on the parties by the court.