As financial remedy practitioners, we are now accustomed to the fact that 7 days before a First Appointment we need to file a Form FM5 explaining whether we have considered Alternative Dispute Resolution and if not, why not. Often, we may be the Respondent in financial remedy proceedings which means we have not been given the opportunity to attend Alternative Dispute Resolution appointments prior to the Applicant filing a Form A (Financial Application). This can be disappointing if you act for the Respondent.
There may be reasons why out of Court mediation may not be appropriate, but that does not mean that a Private Financial Dispute Resolution appointment is not appropriate.
Normally, with mediation, the clients attend meetings with a mediator on their own. If there is an imbalance of power between the parties or an imbalance of wealth or an imbalance of knowledge of the finances or any form of coercive and controlling behaviour or abuse, then clearly mediation is not a viable option. There can of course be shuttle mediation when the parties are in separate rooms. There can also be cases where the solicitors for the parties can attend mediation with their client also. The mediators however are there to guide the meeting and not to advise the clients.
A very successful form of Alternative Dispute Resolution is a Private FDR. In those circumstances, you hand pick with the other side a third independent Private Judge. Normally, you would choose a Silk with experience in financial remedy cases. Unlike Court based FDRs which are normally listed for 1-1½ hours, with a Private FDR, you can set aside the whole day thereby giving yourselves the best chance of reaching an amicable agreement. The Private FDRs can take place at either the solicitors’ offices or the Private Judge’s offices. The clients normally attend with their solicitors and their own barristers. The fees of the Private FDR Judge are normally paid for equally between the parties. In my experience, the fee is well worthwhile. The Private Judge will normally have the papers 4-7 days in advance and will normally spend quite some time preparing for the Private FDR. This is in contrast to the Court based system where Judges may often only be able to look at the papers for the first time on the morning of the one hour FDR appointment.
There are more and more barristers now undertaking work as Private FDR Judges which means it is far quicker to obtain a Private FDR than a Court based FDR. Furthermore, not only are there huge delays in the Court system, often, Court hearings can be cancelled at very short notice to the parties when they have already incurred substantial brief fees. Trying to then find another date when both sets of barristers are available and the Court has an available appointment can lead to unacceptable delays. I have had two such FDRs cancelled at short notice within the last 4 months with severe financial losses for both clients in terms of their incurred brief fees.
I would also float the idea of Private First Appointments. There is no reason why you should not have a Private Judge deal with the First Appointment and make all the necessary usual First Appointment Directions. He or she could then also list it for a Private FDR before themselves.
All in all, my experience of Private FDRs has been extremely positive and successful and preferable to Court FDRs for the reasons set out above.
I would encourage financial remedy practitioners and clients to consider Private FDRs and Private First Appointments as a means of saving considerable time, stress, uncertainty and fees for their client. The fees of the Private Judges in my opinion are more than worthwhile when you consider the success rate of the same and the delays that are avoided.
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Author: Melanie Hamer
Published: 27.02.25