Family law Arbitration

Arbitration

What is Family Law Arbitration?

Family Law matters can be very costly to litigate and time consuming. There is an increasing wait time for the court to determine a family law matter on a final basis, sometimes wait times exceed two years from the date of filing an initiating application. Australia has seen a push towards settling family law matters by way of mediation which has been effective, however there are still many matters that cannot be settled at mediation and require a third party (a court) to determine the outcome of the dispute. In an effort to reduce the strain on the court system there has been a recent push to have family law matters determined by family law arbitration.

Family law arbitration is only available for financial matters, and child related proceedings are not eligible for arbitration. Arbitration is a process in which the parties have the opportunity to present their arguments and evidence to an arbitrator, who then makes a determination (similarly to a judge) that resolves the dispute. The arbitrator’s decision is binding similarly to a judge’s decision.

Who can be an arbitrator?

Family Law arbitrators must be legal practitioners and they must be an accredited family law specialist or have at least 5 years experience with at least 25% of their work in family law. In addition to the above, they must also complete specialist arbitration training. Many arbitrators are experienced family law barristers, and some are former family court judges, therefore they can thoroughly assess the aspects of each parties’ arguments and make a thoughtful determination.

What is the process of arbitration?

In order to commence an arbitration the parties must consent to participating in an arbitration and agree on who the arbitrator will be. Then the elected arbitrator will conduct a “preliminary hearing” this is a very brief mention in front of the arbitrator who will direct the parties to file documents in preparation for the final hearing.

Parties to an arbitration have a lot of control over how the arbitration will look. In some situations, the parties will request the arbitrator make a determination on the entire matter, and other times, the arbitrator will be asked focus on discrete issues. For example, if the parties have come to an agreement how the non-superannuation assets are to be split, however they are unable to agree how the superannuation assets are to be split. Another example may include a situation where the parties agree on the percentage for the division of assets however there is a dispute over certain assets being included in the property pool.

The advantages of arbitration

  • Arbitration is significantly quicker and sometimes can save costs;
  • The parties get to decide who the arbitrator (judge) will be and this can be useful where a particular issue is in dispute and the parties can choose an arbitrator who is experienced in that particular area;
  • Both parties are required to agree on participating in the arbitration process;
  • The arbitration can focus on discrete issues where the parties have come to an agreement on some aspects of the dispute;
  • Arbitrators have a vested interest in being efficient, fair and cost efficient because they rely on repeat customers and word of mouth for their business;
  • Decisions are confidential;
  • The decision is binding; and
  • Multiple arbitrators can be appointed as a panel.

The disadvantages of arbitration

  • The arbitration is limited to financial matters;
  • Arbitrators cannot make an order as to costs; and
  • Decisions can be appealed however the process may be more difficult;

If you would like further information about arbitration or you are curious if your matter is suitable for arbitration, please do not hesitate to contact our office to talk to one of our solicitors who are experienced in family law arbitration.

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