Please note this content was originally published in the Family Law Journal. July 2020 edition, best practice section.
"But you have forgotten the judge’s sandwiches"!
In the brave new world when private FDRs had just started, a friend of mine who was representing a wife in the case where I was representing the husband was hosting the event, and had forgotten to provide a sandwich lunch for the private FDR judge.
The judge laughed it off of course, because she was professional, and I remember well that this gaffe had zero effect upon her advice to the clients that fateful day.
What is a private financial dispute resolution appointment?
The title is a bit clunky, it’s actually too clunky for clients, and it should be renamed under the brave new disposition of lawyers trying to speak comprehensible English to our clients.
We are talking here about a mediation appointment, which takes place to assist people in a financial dispute relating to family law.
I find it much more helpful to talk to my clients and to write letters about private FDRs that instead describe a process of mediation, a concept which all sensible people can easily buy into.
When can a private FDR take place?
Whenever the clients agree that it should take place.
I’m going to talk a lot about agreement in this article, because best practice must be to be as cooperative as possible in terms of the planning of the appointment. It’s a metaphor for the agreement that you want to bring to the case as a whole.
It can take place before or after the issue of proceedings.
Normally of course it will take place after there has been appropriate financial disclosure, in order to maximise the chance of the appointment producing a positive result. It’s common sense really that you wouldn’t hold a private FDR, unless you feel that you’ve got adequate information to continue a negotiation and reach a conclusion. Especially because your client is paying for it.
In this sense it’s like any other type of judge-led mediation in any field of law. Family law is not a desert island.
It’s also a smart move during the
coronavirus epidemic to hold a private FDR. The FRC judges were told by Mr Justice Mostyn, National Lead Judge of the Financial Remedies Courts, in his guidance of 27 March 2020, that parties should be ‘encouraged’ to have their FDRs done privately. Pay attention to the risk that if you don’t, the case may be adjourned for mediation at the next court hearing. See for example para 26 of the Central Family Court Financial Remedies Notice by His Honour Judge Martin O’Dwyer dated 24 April 2020 – ‘Where the court is not satisfied that the parties have appropriately explored ADR, the hearing will be adjourned so that this may be explored’.
Especially in this time of coronavirus, it is very difficult indeed to obtain court time for FDRs.
Who should you select as the private FDR judge?
This article is written at the time of the coronavirus epidemic. We are in a buyers’ market.
There’s already a really solid group all over England and Wales consisting of retired judges, solicitors (many of whom will have an accreditation from Resolution as specialists), Queen’s Counsel and junior barristers.
Many, many firms of solicitors will have people who would do the job of a private FDR judge really well. And of course most family law barristers’ sets will have a number of people from a variety of call who would do this job well.
If you don’t know one of the say three private judges whose names have been provided to you by the solicitor acting for the other party, ask around, ring people up and find out what people say about them. Do you bit of research online and see what cases they been involved in, what articles they have written, and what views they hold.
Obviously all the communications that you send to the private FDR judge or her/his secretary or clerk, will be copied to the solicitor acting for the other party.
How much does it cost?
Frankly, I always tell my clients that having a private FDR is a no-brainer in terms of saving costs, emotional wear and tear, and time.
I’m quite sure that the many lawyers practising family law who are already doing cases pro bono would, in deserving cases, act pro bono as private FDR judges as well.
And have a negotiation on fees for goodness sake, if that’s in the best interests of your client.
Preparation, preparation, preparation
Prepare really well for your private FDR.
Send your offers well in advance of the mediation meeting, and give plenty of time for their message to percolate.
Remember that every offer that you send, and every response to the offer, will be in the private FDR judge’s bundle of documents.
So, in the normal way, be careful what you say in an offer.
And be very careful what you say in response.
It’s hardly likely that a response that basically tells the sender to "get lost" will find favour with any private FDR judge.
Almost as important as the written submissions made to the private FDR judge are the cost estimates.
In my long experience, there is nothing more likely to induce settlement than the estimate of costs which will be spent by each party going forward if they don’t settle at the private FDR. Money talks.
The legal costs going forward could make the difference between a property being affordable for both parties, or for just one, or for neither of them.
It’s often that factor which will induce a bit of liberality, or compromise, to get a deal over the line.
Listen carefully to those lawyers who tell you that they prefer you to pay your client’s money to his/her spouse than to assist them to make their own targets via profuse lawyers’ bills.
Getting documents to a private FDR judge
Send your documents to the private FDR judge in a timely manner so as to give her or him adequate time to read, reflect, and inwardly digest. If possible (and certainly at the present time) the documents should be sent to the private FDR judge electronically.
In writing this best practice article, I have been immeasurably assisted by the kindness of Nicholas Allen QC from 29 Bedford Row Chambers. He frequently sits as a private FDR judge, and was gracious enough to tell me his own practice, his own expectations, and how a private FDR judge can best assist.
I let Mr Allen QC take over:
"From the perspective of the judge what makes a PFDR effective? It starts with a well-prepared bundle. This means that real thought should be given to complying with PD27A paragraph 4.1 – i.e. that it contains copies of only those documents “which are relevant to the hearing and which is necessary for the court to read or which will actually be referred to during the hearing”. In consequence, the bundle can be (and often is) far less than the 350 page maximum (paragraph 5.1 of PD27A). Electronic bundles should be in one single PDF file, be searchable and with pagination computer-generated within the PDF and not hand-written.
Most PFDR judges give themselves the day before the hearing to pre-read and if they have a slim and focused bundle the parties can be sure that all has been read – and more importantly digested and considered – before the hearing itself.
If bundles are prepared in this way then reading lists become less important as everything will have been read.
As to the day itself, we’re all aware that negotiations rarely start before the PFDR judge has given his/her indication. As a result most judges want to start promptly at 10 am (or 10.30 am at the latest) in the hope that submissions can be given, time taken for consideration, and the indication given by the end of the morning at the latest. There’s quite a lot of self-generated pressure to ensure this happens.
This means that (if this can be avoided) the advocates should not spend time on the morning of the hearing either seeking to agree their Schedules of Assets and/or refining their offers. This should all have taken place before the day itself. This of course means that offers should be made in good time before the hearing, and Position Statements/Schedules of Assets exchanged as early as possible on the day before the hearing (although in practice this is not always possible)."
Telling your client what to expect
Fully explain to your client how the sessions will work. Whether the appointment takes place with all the actors round a physical table, or whether as is now much more likely it takes place remotely via Zoom or whatever.
Remember to advise your client that she/he should show respect to the process and especially when the other partner’s representative is addressing the judge. Every facial tic is on view.
Tell your client to clear her/his diary for the day, so that she/he can give full attention to what’s going on and prioritise trying to reach an agreement if possible.
The best private FDR that I have had
Typically, it was unexpected.
The private FDR judge was a children law specialist, not a finance specialist.
She was an immensely experienced lawyer, and, as it turns out, had abundant emotional intelligence.
It was a case where we were alleging non-disclosure and therefore saying that we would only be prepared to settle for a healthy premium on top of a conventional award.
The private judge persuaded us that we should not allow the animus in the case to persist and that both parties had a duty to bring the proceedings to an end there and then.
She got us all to promise that we wouldn’t leave the private FDR building until 5.30pm, so as to maximise the chance to negotiate the settlement that we did.
The worst private FDR that I’ve had
It would be impossible to think of a more egregious example than when we turned up only to be told by the judge that there was no point in him either reading the papers or saying anything by way of advice because both parties had such excellent lawyers that nothing that he would say could assist.
It seemed to me to be a clear breach by the private FDR judge of the duty which is placed upon every person who partakes in an FDR to use his or her best endeavours to settle all the issues between the parties. That’s a duty which applies to the judge as much as it applies to the parties and to their representatives.
Let the children be heard
No, of course children don’t appear at private FDRs.
I’m talking here about their metaphorical presence in the background and the affect upon them of the dispute between their parents.
Mr Allen QC again:
"I usually (if relevant) seek to remind the parties that they are parents and that they owe it to their children to do all they reasonably can to reach a settlement and that they will need to maintain their relationship for many years ahead for their child/children’s sake."
Your performance as lawyer on the day
Your job is to use your best endeavours to agree issues.
What advocacy works well from a tribunal’s perspective?
In the words of Mr Allen QC:
"Like court FDRs the day needs to be managed efficiently – after a prompt start, the advocates’ submissions can be succinct and limited to (say) 30 – 45 minutes. As Brent Molyneux QC rightly says "submissions don’t improve by repetition". The PFDR judge doesn’t need the advocates to rehearse what is said in his/her Note – of far more use is why what is said in the other side’s Note is "wrong".
Identify concisely the issues upon which an indication is sought and then go through those in order. And it should not just be the what but also the why – to take one example, if arguing that it should be a "term" rather than a "joint lives" PPs order, apply the wording of s 25A and identify for the tribunal the evidence upon which the court can form an “opinion” that the recipient will be able to adjust (as opposed to should be able to adjust) without undue hardship to the termination of the PPs.
This is usually far more effective than citations from well-known authorities."
Once submissions have been completed almost all private FDR judges will take +/45 minutes before they give their indication. To a large degree both you and the parties are then dependent on there then being good guidance given.
Best practice – one figure or a range of figures?
Mr Allen QC again:
"As with many aspects of the day there is no "right", "wrong" or "good" or "bad" practice in this regard and here is a good example of where different "judges" have different styles. Some give their views in writing, some do not, some give precise figures and some a range of outcomes.
Personally I tend not to give my indication in writing and I tend to give a range. The reason for this is two-fold – (i) I believe that precise figures risk parties thinking that this is the "right" (and only) outcome; and (ii) I tend to think in terms of identifying the (say) six issues in the case and saying which party is closer to the mark in respect of each issue and why – and hence which party bears the greater litigation risk in relation to each issue. This allows me to say that it is rare that either party will "win" on all six issues at a final hearing – and that if each "wins" on (say) three they may not be the ones that they care most about.
By giving my indication in this way I find that this allows the parties to see their offers as a flexible package and that they may need to cede some ground on an issue of less importance to them to increase their chances of securing the outcome they want on an issue which is of greater importance.
Persuading the parties of this is (in my view) more difficult if the indication is presented by way of precise figures and as the "right" answer.
Personal styles of course differ here with some PFDR judges saying that they have been paid to give "an" answer (if not “the” answer) and that is therefore what they do. They also say that this provides greater clarity in the post-hearing negotiations."
Take really careful attendance notes
The solicitor must take really careful attendance notes of the whole day.
It’s a normal thing – it’s the only way to properly protect yourself against a negligence claim by a client down the road who might accuse you of having pushed her or him into a settlement without due regard to legal considerations, in order to get a deal on the day.
I’ve not yet been to a private FDR that has been recorded, but I don’t see the problem in principle of doing so although the contents are of course without prejudice until the deal is done.
Agreements and orders
If you reach a deal at the private FDR, document it, record it, paper it up, be very very clear about the terms of the agreement. We are here in the territory of Xydhias agreements, and deals which can be made into orders.
What a former President of the Family Division says about Private FDRs
In his last President’s Circular: Financial Remedies Court Pilot Phase 2 dated 27 July 2018, Sir James Munby commented as follows.
Intellectual and emotional investment
"9. Although a private FDR does require some (often quite modest) investment by the parties, this expense can be greatly outweighed by the advantages gained. The very fact of investment by the parties will signify a voluntary seat at the negotiating table rather than a sense of being dragged there. The "hearing" can take place at a time convenient to the parties, even in the evening or at a week-end, and for as long as the parties want. The private FDR judge will, by definition, have been given all the time needed to prepare fully for the hearing.
High settlement rate
10. Anecdotal evidence suggests that private FDRs have a very high settlement rate. Of course, each settlement frees up court resources to deal, sooner and more fully, with those interim and final hearings that demand a judicial determination.
11. Usually, where the parties have agreed to a private FDR the order made at the first appointment will record such an agreement in a recital, and will provide for a short directions hearing shortly after the date of the private FDR. That directions hearing can be vacated if agreed minutes of order are submitted following a successful FDR. If it has been unsuccessful then directions for the final hearing can be given. An alternative is for the case to be adjourned generally while the private FDR process takes place."
I normally find that cases that go to a private FDR settle either on the day, or within 14 days of it, when the messages have been able to percolate.
Don’t you too?
The writer would like to thank and pay tribute to Nicholas Allen QC MCIArb of 29 Bedford Row for his advice about the role of the private FDR judge that features in this article and influences it strongly.
If you require further information about anything covered in this briefing, please contact Simon Bruce, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, July 2020