As a practising barrister and mediator, I want my clients to make the most of Financial Disputes Resolution appointments. [FDR] The purpose of this article is to assist clients, litigants in person or clients who instruct counsel on a direct access basis to understand the process to enable them to get the most from their appointment.
The Purpose of an FDR Appointment
Financial Disputes Resolution [FDR] is the name given to the hearing where the parties attend court to try and agree a settlement. It is a form of alternative dispute resolution in the court building. These are principles that guide the lawyers;
- The FDR appointment must be treated as a meeting held for the purpose of discussion.
- In order for the FDR meeting to be effective, parties must approach the occasion openly and without reserve.
- The negotiations are covered by confidentiality and are not admissible in evidence except in exceptional circumstances.
The Judge’s role on this occasion is to provide guidance as to the possible decision of a court at a final hearing. This is known as an “indication”.
Family Proceedings Rule 2010 r9.17 (1)
Practice Direction 9A 6.2.
How are you going to ensure that you make the most of this opportunity and achieve a settlement?
What Financial Decisions might you need to consider?
There are a myriad of questions which will vary from person to person, this list of potential questions is not an exhaustive list however gives a flavour of the sort of questions you will need to consider and be able to answer;
- what are the assets?
- where I will live?
- can I afford the preferred housing option?
- do I need financial support from the other?
- can I afford to pay support to the other?
- what pension provision will I have when I retire?
- do I want to offset pension rights so I can have more of the house?
- if there is a business, what will happen to it?
- how will the debts be repaid?
You will only be in a position to answer such questions if you have provided full disclosure of not only your financial circumstances, to inform yourself, but also have full disclosure of the other party, to enable you to understand the circumstances of the other party. By the time of the FDR appointment you should have access to any expert reports/ assistance if required. For example you will not be in a position to decide what happens to the business if it has not been valued and it needs to be valued.
If all the disclosure is up to date and the courts directions have been complied with, you have the foundations to negotiate at the FDR appointment.
Impact of Incomplete Disclosure
Incomplete disclosure can prevent an FDR appointment happening or undermine the possibility of it being successful. Bear in mind, frequently parties do not trust each other, you are after all getting divorced! Insufficient disclosure only encourages suspicion and this can in turn impact on the parties ability to negotiate without reserve. Further depending on the gaps in the disclosure, the failure to provide full disclosure can amount to conduct that the court could consider requires a cost order being made against one of the parties.
Preparing for the FDR
- Prepare yourself – You need to know what you can realistically achieve. Everyone’s circumstances are different. You should be in a position to have a realistic view of what it is you need financially to meet your financial needs.
- Identify for yourself what aspects are more or less important to you. There needs to be some flexibility in your approach. Not everyone is comfortable with finances, consider if you need support of a sensible friend or professional to give you guidance well before the FDR appointment.
- The court expects parties to make offers and counter proposals [PD9A r 6.3]. Not less than 7 days before the FDR date, the applicant must file with the court all offers and proposals and responses to them. [PD 9.17 (3)]. It is not uncommon that this is not adhered to but it is still within the spirit of trying to find a solution by putting forward a proposal as late as the day before the FDR appointment.
- The paperwork for the court needs to be in order.
- Financial disclosure needs to be up to date on all the assets.
- The court requires 2 documents a case summary also known as an ES1 and a summary of the financial assets also known as an ES2.
- A bundle of documents for the court and the parties to use needs to be sent to the court. This will contain the documents needed for the FDR. It should NOT contain bank statement, credit care statements and the like unless it is relevant to the Judge to see a particular document.
- Primarily it is the responsibility of applicant to compile the bundle of documents, but if the applicant is a litigant in person the responsibility falls on the respondent if they are legally represented. If neither party is represented, neither party is obliged to file a bundle with the court unless it has directed this. [PD27A 3.1]
- If possible the contents of the bundle should be agreed.
- Any bundle should be paginated, numbered so that everyone can go to the page referred to.
Process at Court
- Normally you are to arrive one hour before the time listed for the appointment.
- The Judge gives an “indication” to the parties based on the legal principles that apply after s/he has heard from the parties. The Judge will use the same criteria as the Judge at a final hearing will use. The “indication” from the Judge should provide a realistic guide of what a Judge may decide at a final hearing.
- After seeing the judge, the parties negotiate towards an agreed settlement bearing mind the “indication”.
- The negotiations could take all day. It is important that you are available for the day and do not have other commitments. The Judge will give as much time as is required as it is the Judge’s function and the lawyers function to help you settle the matter if at all possible.
- Importantly the judge does not have the jurisdiction to impose an order settling matters on the parties, the focus is to encourage the parties to find their own solution.
- If there is no settlement, the Judge at the FDR appointment will not hear the final hearing [FPR r 9.17] and directions will be give to a final hearing.
- If there is an agreement, an agreed order can be presented to the Judge. It might be that the order needs to be drafted away from the court, you will be asked to sign a document known as a heads of agreement.
- Finally sadly due to the current court shortage of Judges, it is very common for FDR appointments to be vacated by the court the afternoon before the day of the appointment. Please consider a round table meeting well before the FDR appointment so you can utilise this option in the event of cancellation.
The family finance team at Becket Chambers provides representation across the full range of finance and divorce issues. If you require advice or assistance, do not hesitate to contact our team at email@example.com.