Although typically associated with high-net worth cases – where the available assets exceed the parties’ needs – private financial dispute resolutions (“pFDRs”) should also be given serious consideration in disputes concerning modest-assets, where issues of need frequently predominate. This article, written by specialist Family barristers, Keiron McCabe and Lillian Garnier examines: (i) the background context and advantage of pFDRs in low-to-mid value cases; and (ii) aims to outline some of the key considerations that practitioners should bear in mind when utilising pFDRs.
A System Overwhelmed?
At the outset, it is important to consider the current conditions of the Family Justice System and Financial Remedies Court. The latest Family Court quarterly statistics reveal that 67,844 cases were initiated between July – September last year, representing a 2% increase when compared with 2024. Of these, 12,634 were financial remedy applications – an increase of 7%. The upshot is that parties are now waiting longer than ever – on average some 13 months – before their case reaches a court appointed FDR. Troublingly, even then, statistics from the Farquhar Committee indicate that even in cases likely to settle, most families still incur the stress and expense of a Final Hearing before their case is resolved.
Whilst the realities of an overwhelmed justice system will come as little surprise to practitioners, it underlines the stark reality facing the Family and Financial Remedies Courts. Equally it poses an obvious question: why is it more families shy away from non-court-based dispute resolution, when such a route has already become so prevalent and established in the so-called ‘big money’ cases?
Private FDRs & Modest Assets
A pFDR is when parties “pay for a financial remedy specialist to act as a private FDR judge. That person may be a solicitor, barrister, or retired judge … The private FDR takes place at a time convenient to the parties, usually in solicitors’ offices or barristers’ chambers, and a full day is normally set aside to maximise the prospects of settlement”.
In other words, the FDR is “private” because, instead of attending the court-appointed hearing after the First Appointment, the parties negotiate privately with a specialist evaluator of their choosing, at a time and place convenient to them. However, although this is the traditional format of a pFDR it is by no means the only option. For example, where parties have already exchanged voluntary disclosure and the issues are narrow – such as the appropriate pension sharing order or distribution of the former marital home – parties can attend a pFDR before even issuing proceedings, enabling parties to file a consent order and minimise costs from the outset.
Those who work within the field of financial remedies will be familiar with the key benefits of pFDRs, nevertheless, and for brevity, these include:
- Flexibility and control: parties can choose their tribunal, location, date, controlling and driving the process throughout.
- Efficiency: last-minute court adjournments avoided, prioritising swift resolution.
- Confidentiality: bespoke setting tailored for private discussion and negotiations as compared to ill-equipped court-based facilities.
- Dedicated Engagement: the parties’ chosen ‘judge’ will have the time to engage and review in detail the nuances of the case. This is particularly important where there is not a surplus of assets available to satisfy needs and creative solutions are required.
- Settlement rates: because of the above factors and the focus on constructive negotiation versus hostile litigation, anecdotally pFDRs are known to have a higher success rate.
Though the above are applicable to most cases, their value when there are limited resources is often underestimated. Firstly, this is because medium-asset cases are by no means insulated from issues of complexity. Think, for example, of the cases where the marital home is the only asset, but one party alleges a third party’s beneficial interest; or the spouses who on paper have nothing to their name, and have funded their lifestyles through their family’s generosity; or where your client seeks to challenge the validity or weight of a trust. In all the above cases, common practice is to list a preliminary issue hearing to narrow the issues for FDR, even though this invariably means depleting the available resources for subsequent distribution. Alternatively, if parties try to ‘roll up’ the issues and seek a wider indication at FDR to save costs, they will inevitably encounter a tribunal short on time and unlikely to have grappled with all the documentation so as to instil confidence in the indication. There may, therefore, be little wonder why those cases capable of resolution at FDR still fail to settle.
Beyond this, modest cases are also those most affected by delay. Consider for instance the situation when one party is responsible for discharging the household liabilities pending settlement, or, when the mortgage is held in joint names but the party in occupation defaults, adversely impacting the other’s credit rating. Despite cost, conduct, and contribution arguments which may be run, readers will be familiar with the reality of ‘needs cases’ and the confined parameters within which the court operates. In such instances, had an earlier settlement been achieved, the outcome for both parties would have been more favourable.
A pFDR is of course not a panacea for every problem. However, in these authors’ experience when acting as the advocates at pFDRs, they do go a long way in addressing the most common barriers to settlement and improving client satisfaction.
As with anything, pFDRs are not without their drawbacks, the key one usually being costs. Whilst this is understandable, there is something of a false economy about adopting such a narrow view in needs cases. Afterall, a significant proportion of cost in FR cases stems from the inter-partes correspondence and preparatory work. Delay enhances this. Moreover, given the costs of the evaluator are shared, this serves to incentivise parties to make the most of the appointment, maximising the prospect of settlement in a cost-efficient manner.
Readers will hopefully excuse these authors for also making the obvious point: should junior evaluators be appointed in low-value cases, a fee commensurate to the available assets and financial means of the parties can be more readily achieved.
Practice & Procedure
- Evaluator Identity: Parties wishing to engage in a pFDR ought to attend a First Appointment (assuming proceedings have been issued) with either an agreed evaluator or proposals for the same, including availability and fees. Where the likely counsel for the appointment has been identified, it is helpful for both parties to obtain their availability in advance as well. The latest Financial Remedies Guide (2026) sets out at §60 that in circumstances where the details of a pFDR are not agreed “the court is likely to assist the parties in reaching an agreement on these issues or (at least) in reaching agreement on a mechanism to determine how they are to be agreed.”. In our experience, the simplest way forward is usually to approach the selection of an evaluator in a similar way to that of an expert (i.e. the applicant to provide a list of three evaluators with the respondent to choose from this list).
- Funding: The starting point when instructing a pFDR evaluator will be for both parties to meet the costs equally. This said, in circumstances where one party has limited liquidity or will struggle to fund their half upfront, the other can fund it entirely and recoup the cost from any final settlement. In circumstances where one party is legally aided, it is possible a pFDR can still be claimed but this would require prior authority, though we are yet to see this in practice. Ultimately, the key question should be whether the non-legally aided party is willing to pay for the same outright pursuant to the principle above. Nevertheless, in circumstances where prior authority is sought, we would recommend including a direction that the Court has deemed a pFDR to be of benefit to the parties, cost effective, and has expressly referred the financial issues to it. Considering the extension of public funding in relation to mediation, and the fact the Court’s increasingly encourage the use of NCDR, it certainly seems sensible to expand the scope of public funding to capture broader forms of ADR. However, whether this will come to pass is another question entirely.
- Listing a pFDR: In circumstances where a pFDR is agreed at First Appointment, the order should record: (i) the identity of the evaluator; (ii) the date the pFDR will take place, or if not known, the date until which proceedings shall be adjourned to enable a pFDR to take place; (iii) that the in-court FDR appointment is dispensed with; and (iv) that the matter shall be listed for a mention/ directions hearing after the pFDR appointment. This hearing can be vacated if a consent order (and accompanying D81) is filed and approved by a judge in advance. The date agreed upon for a pFDR is important, as even if both parties agree, once the date for a pFDR is set it theoretically cannot be changed without the court’s consent (per AS v CS (Private FDR) [2021] EWFC 34 at §20). Albeit §59 of the Financial Remedies Guide (2026) notes “once fixed [it] may only be adjourned by written agreement or pursuant to an order of the court”. Nevertheless, it is sensible to seek the court’s permission before adjourning a pFDR. Timeframes must therefore be realistic, especially when expert reports are likely to be required.
- Participation: Engaging in a pFDR is simple and designed to meet the parties’ needs. Though the appointment can be conducted remotely, they are often considered more effective when undertaken in person. Appropriate arrangements can be put in place – whether by remote means or at the evaluator’s chambers – for example, St Philips offers an array of conference rooms to ensure privacy and separation during negotiations, with screens readily available to facilitate a request for special measures. Unlike a standard FDR, a pFDR judge has the advantage of additional time to consider the papers and the parties’ positions. At St Philips, it is standard practice for the evaluator to provide a written indication to support settlement, either during or shortly after the appointment
- Post pFDR considerations & privacy: In the event the parties do not settle at the pFDR, strict rules apply. An explanation shall have to be given to the judge dealing with directions at the next hearing so as to satisfy the court that a thorough FDR process has taken place. Such details should not mention without prejudice positions and be strictly limited to: (i) whether or not the appointment took place and if so, the date and whether both parties attended; (ii) the identity of the evaluator and legal teams; (iii) the location; and (iv) its duration. This is echoed within Practice Direction 9A, §6.2, namely, non-disclosure of the content of the FDR (including pFDR’s) is vital and an “essential pre-requisite for fruitful discussion”. Any admission made in the course of the FDR is not admissible in evidence. Such has been the subject of ongoing judicial support, first by Roberts J in LP v PS [2021] EWHC 3508 and more recently, by Peel J in BC v BC [2025] EWFC 236. Ultimately and as is clearly underlined within both judgments, the pFDR is an inherently private juncture within FR litigation, against which the associated rules must be respected and adhered to.
Conclusion
Overall, the recent expansion of non-court dispute resolution and its connected benefits have too often been confined to high-value cases where the available assets exceed the parties’ needs. In the interests of promoting efficiency within the justice system, a pressing question arises: shouldn’t the reach of NCDR be expanded to promote greater accessibility and inclusivity for all litigants?
Lillian Garnier & Keiron McCabe
This article reflects the law as of the date it was published. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
