Usually, the FDR is the second court hearing once you have issued a court application to determine financial matters on divorce. This is a ‘without prejudice’ opportunity designed to encourage the parties to reach a settlement. What is discussed at the FDR cannot be referred to at a subsequent final hearing, so parties are able to negotiate freely. The FDR judge cannot deal with the matter at the final hearing.
Before the FDR the parties must have completed the disclosure and computation part of their case so that it is clear what is available to be divided between them. Without Prejudice offers to settle are usually exchanged in the two weeks before the hearing so that each party comes to the hearing with a good idea of what the other one wants from a settlement.
The judge will give a non-binding indication of what would constitute a fair settlement and encourage the parties to make compromises to reach a final agreement. These indications can be very persuasive in getting the parties to reach finality.
Court based FDRs are often frustrating as there is usually very limited time available to the judge who often has 4 or 5 cases to deal with on any one day. He/she often has no time to read the papers and can therefore provide only limited input and assistance to the parties.
For this reason, we have seen an increase in private FDRs and Early Neutral Evaluations (ENE) where the parties agree to pay a private judge to hear their case and give an opinion. Private evaluators are usually chosen from the ranks of barristers and retired judges who can devote as much time as the parties require to assist in settlement negotiations. They are usually held in a more comfortable and less intimidating environment than the family court and, in my experience, are more likely to result in settlement, making them worth the extra cost paid for the private evaluator’s time.
As the pressure on court time increases I expect these alternatives to become more popular and I have already seen a marked increase in my own practice.
