Thu, 06 Jan 2022
Alternative Dispute Resolution (ADR) has been enjoying an ever-increasing profile within family law for a number of years now. It has found its way into legislation via s.10 of Children and Family Act 2014 which made it compulsory for individuals to attend a family mediation information and assessment meeting (MIAM) before making a family application to the court. It is specifically referred in the procedural rules under Part 3 of The FPR 2010 which imposes a duty on the court to consider non-court dispute resolution at every stage of court proceedings. As far as the judiciary is concerned, the higher courts are taking an increasingly robust approach in relation to ‘pushing’ ADR as evidenced by the Court of Appeal judgment in Lomax v Lomax  EWCA Civ 1467 where the Court held that it had the power to order the parties to engage in ADR even where one or even both parties did not consent to that course.
Despite these various forms of encouragement, ADR within the context of divorce proceedings has still not taken off in the way that the legislators and higher judiciary clearly hoped that it would. The catalyst for ADR being employed more regularly may now finally have arrived however, in the form of the enormous backlog in the family courts, which has been exacerbated by the pandemic. There are currently significant delays in progressing applications for financial remedy through the court system and it is difficult to see how the backlog will be cleared any time soon given that the family court statistics for the first half of 2021show an increase of 72% in the number of applications made for financial remedy between April and June of 2021, when compared with the same quarter of 2020. The average time from petition to decree absolute is now almost a year and it is therefore unsurprising that more couples are looking to resolve the financial aspects of their separation outside of the creaking court system.
In relation to financial remedy, obtaining an early neutral evaluation of the case via a private F.D.R. hearing is fast becoming an increasingly popular method of resolving a financial remedy application or even a potential financial remedy application. It provides an independent, expert opinion as to the potential outcome of a financial remedy claim whenever the parties are ready, rather than whenever our overburdened court system can accommodate them.
The process provides a without prejudice means of obtaining an expert assessment of the strengths and weaknesses of each party’s case with a view to establishing a basis for settlement. In that sense, the process mirrors a traditional F.D.R. hearing but it has the obvious benefit of being available to the parties without waiting the several months and incurring the thousands of pounds in costs that are usually required to get to an F.D.R. hearing after issuing an application for financial remedy. Parties can opt for a private F.D.R. before court proceedings are commenced with disclosure taking place on a voluntary basis, or where proceedings have already been issued, they can elect a private F.D.R. instead of an F.D.R. hearing at court.
There are a number of obvious advantages to a private F.D.R. hearing.
Choice of Adjudicator.
The parties can choose their ‘judge’ for a private F.D.R. hearing. Usually the parties will opt for a senior solicitor or barrister specialising in financial remedy work. In addition, there may be a specific aspect of the case that would benefit from input by a ‘judge’ with particular knowledge and experience of that aspect. If so, the parties will be able to choose their ‘judge’ with that in mind.
Often, at an F.D.R. hearing at court negotiations do not really progress until the parties have benefitted from some judicial input and there will of course, be a number of other cases in the list. The parties can be waiting for hours before getting the benefit of the judge’s wisdom and by the time they get it the court day can be almost over. At a private F.D.R., the ‘judge’ is focussed only on the parties’ case and the parties can obtain the ‘judge’s’ view as early in the process as they wish, leaving the rest of the day available for negotiation.
In addition, the fact that the ‘judge’ is focussed entirely on the parties’ case and only the parties’ case, means that he or she will have been able to spend the time required to master the facts and give full prior consideration to the key issues. The time pressures produced by listing multiple cases mean that often, this is simply not possible within the court setting.
The fact that the ‘judge’ will be available for the entire day means that he or she will also be able to assist with any issues that may arise subsequent to settlement being reached, such as problems in relation to the wording of the order.
A private F.D.R. hearing will usually take place in a solicitors’ office or barristers’ chambers. Rooms will have been set aside for both the parties and the ‘judge’ in a way that is not usually possible in a busy court building where complex negotiations are often conducted in public areas like cafeterias or even corridors. The availability of allocated rooms that can be utilised throughout the day will provide a relaxed and structured environment which should aid progress towards a settlement.
Although evidence on the point is no more than anecdotal, it seems that private F.D.R. hearings have an even greater settlement rate than those which take place within the court process. This may have something to do with fact that the parties have agreed to undertake a private F.D.R. hearing rather than being compelled to do so by operation of the Family Procedure Rules. Volountary engagement can be seen as at least prima facie evidence of a genuine desire to settle.
In terms of costs, it is right to say that the parties have to pay a fee to the ‘judge,’ which represents an additional layer of costs, but this will be far outweighed by the costs saved if a settlement is reached.
The use of private F.D.R. hearings will inevitably increase within the context of the current court backlog and it is to be hoped that this will result in a corresponding decrease in the number of cases undertaking the expensive and lengthy trek towards a court-based conclusion.