Over the last decade or so, the popularity of Private FDRs has grown exponentially. This growth was accelerated by the Covid-19 pandemic, where the strains on the court and delays in hearing new and existing cases encouraged practitioners and their clients to seek alternative means of reaching settlement.
The various benefits of Private FDRs are well known: flexibility in terms of date, judge and location, and the full focus of a judge who has had time to fully read into the case and understand the issues. The only real disadvantage is the often significant cost when compared to the court FDR. Clients will undoubtedly want to feel that this cost is justified and so it is crucial that lawyers do what they can to maximise the chances of success.
With this in mind, below are some tips for maximising the chances of achieving settlement at a Private FDR ("PFDR"). Although many of the points may seem obvious, they are often overlooked.
Lawyers will often select potential judges based on who they have worked with before, which makes sense, but should not be the sole consideration. A judge might be perfectly suited to one PFDR but much less suited to the next one that comes up due it containing very diffident legal or factual issues, or different types of client. Past experience is certainly a good starting point, but it is important to consider the major issues in the case and who may therefore be best suited to adjudicate based on the specialist areas of practice.
The parties' views should also be considered – are they likely to prefer someone who will take a more technical approach and get stuck into the detail or would they prefer a more holistic, broad-brush approach? Are their personalities such that they need someone who will be firm or are they more likely to reach settlement with someone who takes a more dynamic approach? Similarly, are they likely to benefit from someone who tends to give a more precise indication or from someone who gives a bracket for settlement with room for the parties to work within that. These are nuanced but important considerations.
Once a date for the PFDR has been set, a timetable should be agreed so that everything required to have an effective PFDR takes place in advance of the hearing. Even if the PFDR has been agreed to take place on the same day as the court FDR would have, a timetable should be confirmed in writing, which may or may not be based on the court one. This should however include the standard directions included in the court timetable. Where there are no proceedings, it is still important to ensure directions are agreed, and there may be an opportunity to agree additional directions that are not usually included a court First Appointment directions order. As part of this, and as discussed at points 3 and 4 below, it is important to ensure agreed directions are complied with plenty of time before the PFDR so that the parties and their counsel can properly prepare and so that one party does not feel unable to settle on the day due to insufficient preparation time.
Settlement proposals should be made as far in advance of the PFDR as possible. This should ideally be one to two weeks before the PFDR, but certainly no later than two or three working days before. This allows both parties to reflect on the proposals of the other party (bearing in mind there may be significant differences) and also allows the lawyers and judge to consider these in plenty of time and consider the net effect of each of these and where the main differences are.
4. The Bundle
Whilst it is not recommended that the bundle be excessive in size, it should be remembered that in a PFDR there is more flexibility with the bundle. Documents that may not ordinarily be included in a court FDR bundle can be included (by agreement) if they might assist the judge, who will have more time to review the bundle and understand the issues. This should not however give free rein to the parties to become complacent and lodge a large bundle full of irrelevant documents which the judge is not able to read in full and digest. It should still be limited to key documents relevant to the main issues in dispute. The bundle should also be agreed between the parties and circulated in plenty of time (usually a week before the hearing) to ensure the judge and both counsel have plenty of time to become familiar with it.
5. Practical Arrangements
This is a crucial yet sometimes overlooked (in the context of the other aspects of PFDR preparation) element which can be the difference between a successful and unsuccessful PFDR. Careful consideration should be given to the space where the PFDR is taking place. The rooms themselves should be big enough so that the parties do not feel confined and under pressure, and the rooms for the opposing parties and their lawyers should be sufficiently far apart so that everyone feels comfortable having confidential conversations without fear of being overheard, or indeed so that one party does not overhear something out of context which changes their approach. Counsel should have a separate room so that they too can have frank and open discussions, without having to attempt to negotiate quietly in a corridor. In terms of the seating arrangements in the hearing itself, ideally the parties should be seated so that they are not facing one another, but so that the judge can see and communicate with them equally.
It is preferable to obtain the judge's indication before lunchtime if possible, so that the parties can have plenty of time to ruminate and discuss with their advisors. If the indication is too late in the day it will not allow proper time for them to negotiate, nor to go back before the Judge to explain any blocks or impasses in negotiations that the judge may be able to give an opinion on.
The parties should also ensure they have made any childcare arrangements as PFDRs can often go late into the day and sometimes into the evening. The chance to settle can be lost if momentum gained during negotiations is lost if one party has to leave.
Ensuring there are printing facilities available is also something which seems obvious but causes issues far more often than it should. The judge might want to circulate a written indication or heads of agreement may be drawn up to be passed between the parties and signed.
None of the above points in isolation above should make or break a PFDR and every lawyer will have their own preferences and style. There are of course many other competing considerations to be taken into account, but by ensuring careful consideration has been given to all aspects of the process, practitioners can maximise the chance of avoiding the wasted costs and stress of a failed PFDR, and potentially many more months of litigation. As PFDRs continue to gain popularity, lawyers will need to ensure they have a clear strategy and approach to maximise success.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.