The rise and rise of private judging

Posted: 13/02/2018

There are many reasons to avoid the family courts. They are overburdened and under-resourced, leading to lengthy delays. There are few waiting rooms, and little privacy. In short, the environment is not conducive to negotiation.

It is no surprise, therefore, that increasingly, those who can afford to do so are ‘going private’. We are used to the idea that many choose private health care, so that they can see a consultant of their choice, at a time of their choosing. Growing numbers of divorcing couples are opting to apply similar principles, so that they can resolve the financial aspects of their divorce as quickly as possible, and away from the public gaze.

Two particular forms of private justice are gaining real traction: private FDRs and private arbitration. 

Private FDRs

The FDR is a key stage of the financial proceedings and one at which the vast majority of cases settle. It involves a relatively informal hearing in front of a judge. Each party advances their case (via their respective solicitors / barristers) and the judge provides an indication as to what the likely outcome of the case would be should it proceed to a final hearing. This assists the parties to then negotiate and reach a settlement.

There are many reasons to choose a private FDR over a traditional court-based FDR:

• Privacy: A private FDR is just that: private. No one other than the parties, their lawyers and the chosen judge need know when or where the hearing is taking place.
• Specialism: The private FDR judge will be a specialist in the area concerned (eg complex finances) and probably a very senior barrister with previous judging experience. The judge will have been chosen by both parties’ solicitors thereby giving confidence to the parties.
• Attention: The case will be the absolute priority of the private FDR judge. He / she will have had plenty of time to read thoroughly / understand the issues.
• Environment: A private FDR will take place at a venue of choice that is conducive to settlement (for example, in a private, comfortable meeting room in a barrister’s chambers or solicitor’s office, as opposed to in a busy court building). It is not uncommon for an FDR hearing to last all day which is why environment plays a part in its success.
• Speed: A private FDR can be arranged at relatively short notice at a time that is convenient to both parties.
• Cost: Even though the parties have to pay the private FDR judge, this can still be more cost-effective than waiting months for a court listing. 

An FDR (whether held in private or at court) does not result in a binding judgment. Its aim is to encourage parties to settle by agreement, albeit with guidance from the judge.

Arbitration

Arbitration is appropriate for people who wish to obtain a final binding judgment out of court. It might be appropriate, for example, if the parties could not reach agreement at a private FDR. Arbitration carries the same advantages as a private FDR and can be a very cost-effective way of resolving disputes.

Conclusion

Broadly speaking private judging solutions can provide a bespoke, creative, expedited and cost-effective approach to financial settlements resulting from divorce. Those who can afford them should give serious consideration to private FDRs and private arbitration. The experience of our clients to date has been overwhelmingly positive and we would be very happy to discuss the various alternatives with you.

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