Relatively few cases get to the third and final stage in proceedings. The final hearing begins with each party setting out its case. Both spouses then give oral evidence for the first time. If experts have been involved (such as accountants), they may also be questioned, as may other witnesses if relevant. After the evidence has been given, the judge makes a final, binding order detailing how the parties’ finances are to be dealt with. It is common for final hearings to last at least 2 days and up to a number of weeks in particularly complex matters.

Conclusion

The FDR system is not perfect, but it does seem to be very successful. Most cases settle at or soon after the FDR hearing, if they have not settled before. It is rare for a case to go to a final hearing. The disadvantages are that there can be a long wait to the FDR hearing and it is expensive and stressful. Alternative forms of dispute resolution, such as mediation and the collaborative law approach may suit individual clients better.
There is also a suggestion that, as time has gone on, the FDR hearing is used less constructively by practitioners. The gap between the offers made by parties seems greater, with each party realising that more negotiation will take place at the FDR hearing and perhaps pitching offers at a level that makes ‘splitting the difference’ more advantageous to them.
Despite complaints about the delay in matters proceeding to the FDR hearing and concerns about how constructively it is used by the parties, it is a good opportunity for them to hear the neutral indications of the judge as to the likely outcome of their case and, in most cases, this is enough to disabuse the parties of any unrealistic expectations that are hindering progress in settling. The skill of a experienced practitioner is to advise on the likely outcome and to negotiate a reasonable settlement at an early stage, before costs escalate.