The FDR will normally take place 3 to 4 months after the First appointment. There may be a longer lead-in in the High Court. The FDR hearing is essentially a process of court-led mediation, giving the parties the benefit of a wholly independent judicial opinion on their case without the need for a full trial and the costs and delay that a full trial necessarily involves. It also gives parties a chance to resolve their differences in a structured way.
Most negotiation takes place outside the courtroom between the lawyers on behalf of the parties. The parties are under a duty under the FPR 1999 to make proposals and to give proper consideration to the proposals from the other. The judge is made aware of all offers and proposals made. The parties are normally given time to attempt to negotiate and the judge may have everyone back in two or three times during the course of the day to see how matters are progressing.
If they are not able to agree on a particular issue, the judge is on hand to offer an early neutral evaluation as to the likely outcome if the matter were to proceed to a final hearing. This evaluation is often a wake-up call to a party maintaining an unreasonable position. In most cases, the neutral evaluation of the judge is supplemented by an objective analysis of the costs incurred by the parties to date.
The parties do not give evidence at the hearing although they may on occasions be asked questions directly by the judge.
The FDR judge cannot impose a final order but can approve an agreement that the parties have reached themselves. Three categories of order are possible:

1. An order adjourning the hearing to another FDR;
2. A consent order disposing of the case; or
3. Directions to progress the case to its final hearing (which in some cases may have already been fixed) and other relevant directions.

The District Judge or High Court Judge has no further involvement with a case after the FDR appointment; the parties are therefore encouraged to negotiate freely without fear that they will prejudice their positions if the case goes to a final hearing.
A “cards on the table” approach is essential if the FDR appointment is to have any success and each party should:

• have complied with the directions and provided all financial disclosure in a timely manner;
• have carefully considered his or her position and arrived at a sensible and realistic proposal; and
• be reasonable and must try to settle the case.

The purpose of negotiation is not to determine liability, but to reduce the length and expense of the legal process. The duty is not merely to settle the case, but also to narrow the issues. Parties that fail to negotiate or who arrive at the FDR hearing with the intention of sabotaging it, may be penalised in costs although in practice this seldom happens.
The form of the FDR hearing will depend on the style preferred by the individual judge and the FDR appointment has been described as an innovative and elastic field.
The parties will be bound by any agreement approved by the judge or reached as a result of negotiation. Practitioners are rightfully cautious to protect their client’s position and avoid criticism that they have “forced” their clients to settle. There is a fine line between acting in the best interests of a client and ensuring that a client is not reaching an agreement while their state of mind is influenced by the stress of the hearing and the inevitable pressure to settle.