This is a guest post from an anonymous contributor.
Context
A financial dispute resolution hearing (or “FDR”) is an essential appointment in a financial remedies application, when divorcing couples need to sort out their finances and property. A judge will hear brief submissions (arguments from lawyers), provide an “early neutral evaluation” or ‘indication’ of the respective merits of each parties’ case and then encourage further negotiations within the court building. The judge’s indication is not binding upon the parties and that judge then has no further involvement with the case. This is to ensure that everyone is able to enter into the spirit of trying to resolve the case by agreement rather than worrying that what they say will be held against them if the case has to go to trial.
Many financial remedies applications are resolved at such appointments, saving the parties further litigation, cost and the uncertainty of an imposed decision from a judge, which is binding upon them. Private FDRs are very similar to court based FDRs, save the that tribunal for the day is not formally a judge but a trusted lawyer who has been appointed by both sides to perform a similar role for a fee. Private FDRs have become quite common in London but less common elsewhere around the country.
Since lockdown divorcing couples have been reviewing their options for financial dispute resolution and looking again at the option of the private FDR appointment, albeit conducted on a remote basis.
A remote private FDR
This is an account of a remote private FDR hearing which took place recently. In the early days of lockdown, the parties and their lawyers were invited to consider but would not countenance a remote private FDR. Times change.
The case did not involve a “Magic Circle” firm or huge amounts of money. The parties were not, to borrow that rather unattractive and thoughtless phrase, “High Net Worth Individuals.” Far from it. This was a normal case, involving everyday people from an ordinary corner of the jurisdiction.
The hearing was scheduled to start mid morning.. The lawyer who acted as the ‘judge’ wanted to test the technology with the advocates first, so three lawyers commenced a Zoom call a few minutes prior to the formal start time.. The lawyers duly assembled and played around with how Zoom breakout rooms work. It took a minute or two to get the hang of it and a willingness from the ‘judge’ to admit that they had not done this before and the humility to ask to be shown how it works. The advocates “called in” their respective solicitors so that all the professionals had tried the tech.
The advocates, who were each very well-known personally to the ’judge’, used a formal form of address from the outset. The ‘judge’ suggested such formality might not be required, at that moment, prior to the lay parties coming online. The advocates each politely explained that this is how they wished to address the ‘judge’ for the day.
Once the tech was mastered the lay parties were also admitted into the main Zoom hearing room shortly after the scheduled start time. As the session had been configured with breakout rooms, one of the parties immediately disappeared out of the main screen. For a few seconds everyone wondered where they had gone and then a lawyer “went into” the breakout room to retrieve their client.
Shortly after all were assembled in the main hearing room for introductions, housekeeping and to ask for extra time to discuss matters. One party was remoting in from a location with variable bandwidth. This was explained to the ‘judge’ and it was agreed if there was a problem that party could switch to “audio only” participation. In the event, that was not necessary, but once or twice an advocate had to repeat themselves, due to a momentary tech freeze. It was agreed the parties would each enter their breakout rooms immediately and return to start the hearing properly a short while later.
Revised and more realistic offers were exchanged in phone calls between counsel prior to the resumption of the hearing. The “electronic” door of the court was working its magic in concentrating minds.
When the hearing started in the conventional way counsel orally expanded upon the points made in their short notes. Halfway through submissions one party’s screen went off. Seconds later the hearing was stopped whilst the ‘judge’ assessed whether this was a technical glitch or something else. It transpired that one party found the situation too distressing. The ‘judge’ granted some time back in the breakout rooms for the parties to compose themselves. It was agreed that the upset party would return to the hearing to hear the tribunal’s indication.
The ‘judge’ gave an indication on the various contentions which had to be addressed. The indication was slightly longer than one would expect in court. Documents were referred to, showing a familiarity and command of the papers. The indication was measured, helpful and delivered with confidence and authority.
The submissions and indication had taken much of the morning. and it was agreed that the next full session would be after a lunch break.. The parties and lawyers retreated to their respective breakout rooms for further discussion and a break. The screens were left muted with cameras off whilst a short refreshment break was taken. One lawyer’s computer crashed over lunch and had to be restarted and a request made to be readmitted to the meeting.
Shortly before the afternoon session counsel on each side phoned one another for further discussion.
The lawyers and the ‘judge’ had set up a “lawyers only” WhatsApp group prior to the hearing. The personal profile photos of the participants, which could be seen on the WhatsApp group, were perhaps the only intrusion of the participants’ personal lives into the day.
The ‘judge’ sent a short WhatsApp message just before the afternoon session was due to commence, asking if the parties were ready to come back into main session. Via WhatsApp one party asked for another 10 minutes. It was granted by return of message. One advocate’s webcam froze and had to be unplugged and plugged back in. The glitch took less than a minute to resolve.
The parties were close to compromise shortly after the start of the afternoon session and went back into the main hearing to update the ‘judge’. Time was granted for drafting “you can have as long as you like.” The ‘judge’ asked for a couple of updates via WhatsApp over the next couple of hours, “How is it going?” and the like.
Drafting of the main order was undertaken by one counsel from the calm of a home study. The pension sharing annex was drafted by another lawyer from a Word template, whilst sitting in their office in another city. The documents were exchanged a couple of times via email and tracked changes debated and ironed out and agreed.
At the end of the afternoon, the parties were back in the main hearing room. The other counsel, this time, was jacketless. The ‘judge’ congratulated the parties on their settlement. The advocates apologised for having detained the ‘judge’ for the afternoon but indicated their gratitude that their negotiations had been able to continue, secure in the knowledge there was a neutral third party, ready to adjudicate on any points of drafting dispute, just a click away.
By the end the afternoon all the parties were back on screen. The atmosphere was much more relaxed and informal by this stage. It was agreed that one party would sign the PDF consent order and then send over to the other. The Zoom meeting was kept open until each side had had a final consultation, after which point a WhatsApp message went round indicating that the session could be closed. The last signature was returned on the PDF shortly after the conclusion of the hearing.
The session appeared to work well for the parties, secured a settlement and spared the court system one case from the list. The lawyers all worked well together and used technology to keep in touch and update one another.
The ‘judge’, who had not sat as a private tribunal before, had offered a generous discount on fees to encourage the lawyers and parties to give it a go.
The lawyers appeared to have had a positive experience. A wholly alien concept was tried, grasped and mastered in the space of a day.
What will happen next?
Following the private FDR the agreed draft order is submitted to court for formal approval. Guidance issued by the courts means that such approval is a matter of course. See paragraph 10 of the Financial Remedies Good Practice Protocol.