How does it work?

Private Financial Dispute (PFDR) and Early Neutral Evaluation (ENE) Judges are specialist lawyers who are qualified to make non-legally binding decisions without people needing to go to Court. 

If you have agreed to go to a Private FDR/ENE on a legal problem you will be asked to provide all the relevant papers in your possession and usually your own narrative account of the issues. This may be sufficient but there may be further things needed which the PFDR/ENE Judge will tell you about. You can have an ENE without the need for a hearing, but it would be very unusual to have a PFDR without a hearing. 

It is important to emphasise that Private FDR/ENE hearings take place on the basis that they are without prejudice to the position you may take if the matter cannot be resolved and has to proceed to a contested hearing (either by way of an arbitration or court proceedings). 

This means that things said at the hearing can’t be used later, either for or against the person who has spoken, although any relevant documents disclosed during the hearing will be considered “open” and may be relied on later. The purpose is to encourage you to be open and frank with each other as to the outcome which you would find the minimum acceptable to you, and for the FDR/ENE Judge to assess the real gap between your respective positions. 

A PFDR hearing will be in person and will take place in a private room. No-one else but you, your legal representatives (if you have them) and the PFDR/ENE Judge will be present. The hearing will be a bit more formal than any preliminary discussions because these are legal proceedings but they will be nowhere near as intimidating as a court hearing. The tone is much more like a business meeting although there are some important points to bear in mind. In particular, you will take it in turns to speak unless the PFDR/ENE Judge asks you something out of turn. The legal representatives will sometimes help each other out by finding missing page references or documents for example but that is the exception to the general rule.

An ENE may take place as a stand alone meeting, and it can also take place within other family law approaches - for example in a mediation or a collaborative law case. An ENE judge can also give opinions based on the papers alone, and each case will be different.

Formal evidence is not taken at these hearings and the parties themselves may be invited to contribute even if their legal representative has already spoken for them. They are encouraged to be as open as possible with each other.

After everyone has presented their cases and explained their position the PFDR/ENE Judge will adjourn for about an hour and will then present you with a written assessment of the case and the likely decisions which would follow if the case proceeded to a full trial. You may seek clarification of this and ask for an assessment as to what might be the outcome if the evidence on one or more issues were to be different to the way in which it has been assessed. 

You are not bound by the PFDR/ENE Judge’s assessment but should treat it as being a fair and independent assessment of what will probably happen if the matter is contested to a full hearing. It is therefore wise to spend any remaining time allocated to the case trying to negotiate your own settlement within the indicated framework of the written non-binding decision.