As a result of the long delays which families are experiencing in resolving disputes in the family law courts, there has been an increased push towards alternative forms of dispute resolution, such as mediation or arbitration, to enable parties to obtain finality.
So, what is arbitration?
Arbitration is a form of dispute resolution. It has similarities to the Court process, however instead of having the dispute determined by a Judge, it would be determined by an accredited arbitrator. Each party participating in an arbitration will give evidence to the arbitrator, and make arguments in support of their application.
The arbitrator must follow the legislative pathway and case law when coming to their final decision, in the same way that a Judge or Registrar of the Court would.
What issues can be determined at arbitration?
In some cases, it may be necessary for a preliminary or a “threshold” issue to be determined at the early stages of Court proceedings, such as valuation issues or applications for partial property settlement.
Parties can agree to participate in arbitration for such interim or discrete issues, but arbitration can also be used to finally determine family law property disputes, in preference to conducting a final hearing.
Arbitration cannot be used to resolve parenting proceedings.
Is the outcome of the arbitration enforceable?
The outcome of an arbitration is referred to as an “award”. The arbitrator will provide reasons for their decision, just as a Judge or Registrar of the Court would if the matter were determined through the Courts. When the outcome of arbitration has been determined, a party may apply to the Court to register the award, so that the award is treated as an enforceable order of the Court.
Can the arbitration award be appealed?
In the first instance, one party must seek to register the award with the Court before it becomes enforceable. If however one or more parties seek to appeal the decision, there are some limited circumstances in which the award may be set aside, such as if there was a lack of procedural fairness in the arbitration, or if the award was obtained by fraud (such as a party failing to provide disclosure in relation to their financial circumstances).
What are the benefits of arbitration?
There are many benefits to participating in arbitration. The primary benefit is significantly reducing the time that parties are involved in litigation. Some families can wait years for their matter to proceed to a final hearing, and then must also wait for the decision to be delivered. The other benefit of arbitration is to reduce the overall costs incurred by parties to resolve their family law dispute, as a flow on effect of reducing the length of litigation, or by avoiding the Court process all together.
As well as the ability to have the outcome determined quickly, an arbitration gives the parties the benefit of determining how the process is conducted. The parties will choose the arbitrator that they will jointly engage. The parties will also be able to determine whether the arbitrator makes their decision based on oral arguments, written submissions, hearing evidence of both parties, or a combination of these.
Arbitrations are also confidential, whereas family law courts are open to the public.
Is arbitration suitable for your family law matter?
You should obtain specialised advice in relation to your family law matter, tailored to your particular circumstances. For further information regarding arbitration, or your family law matter generally, contact our office for an initial appointment on info@rmfamilylaw.com.au or call us on (02) 6225 7040.