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What is arbitration and how can it help you with your family law matter?

This is an important question that nobody knows to ask.

Before that question is answered, it is important to keep in mind that the waiting times for couples to have a trial in the Family Court has blown out tremendously in the last few years. Couples can expect to wait up to 3 years (or longer) from the time they start litigation to proceed to a trial. There are different avenues for couples to pursue given these circumstances. One such pathway is arbitration.

It is a process available to couples that have a dispute about their financial matters. Parenting and child support matters cannot be arbitrated.

What is arbitration?

When couples are unable to resolve the issues in dispute between them, then they can access various kinds of alternative dispute resolution (“ADR”) processes.  Arbitration is one of many ADR processes available to disputing couples. It does not directly involve the Family Court, and it is conducted by a suitably qualified person whereby a decision is made to resolve the dispute between the couple.

The arbitrator has the authority to a make decision in a dispute between a couple – much like a magistrate or judge in the Family Court would – and that decision becomes binding once it is registered with the Family Court. This is called an arbitrator’s award.

As with all other ADR processes, arbitration is available to such couples at any time. This includes when one has commenced litigation and is awaiting a trial.

How is an arbitration conducted?

It is a consensual process and it requires both couples to agree to using it. Both parties will work together to appoint an arbitrator or have one appointed by an independent decision-maker when the couple cannot do so. Naturally, the couple will be invested in choosing the right decision-maker since they are also footing the bill.

The couple will have a great degree of involvement over how the arbitration is conducted. For example: whether the process will be formal or informal. Whether the rules of evidence are to apply or not apply. However, the arbitrator is entitled to inform themselves of any fact in issue so as to ensure that procedural fairness rules are still abided by and that a person is not disadvantaged.

More than one kind of arbitration?

It would be remiss to say that there are a set number of categories or specific kinds of arbitration categories when that is not the case. The purpose of ADR, and arbitration, is to have a flexible process that is not as rigid because it will utilised the people involved and the arbitrator looking at their individual circumstances or needs. Below are five examples of how arbitration can utilised by disputing couples:

  1. Arbitration on the papers – the main focus is to make a decision about the outcome when the circumstances can call for a statement of agreed facts, a short outline of each party’s contentions, and can include consideration of the documents filed with the Family Court.
    There is no “hearing” as such – no-one gives evidence and lawyers do not make oral submissions – everything is submitted to the arbitrator in writing.
  2. Limited hearing arbitration – some fashion of giving evidence is required and parties may be cross-examined on the contentions issues, to clarify disputed facts, or simply to facilitate a desire to be heard.
  3. Limited issue arbitration – to address interim issues or matters in dispute to enable the overall matter to be resolved – either by arbitration or through some other form of ADR.
  4. Full hearing arbitration – a process that is similar to a trial.
  5. Mediation and arbitration – this blends two ADR processes. Mediation is a process where the couple works towards their own resolution through compromise, concessions, and considerations of each position.  However, if the couple does not reach an agreement between themselves, then the mediator’s role can convert to that of an arbitrator and then a decision can be made for the couple.

What are the main benefits to pursue an arbitration?

An arbitration can be available as soon as the parties are ready instead of waiting for a trial to be heard at some unknown future time.

Other benefits include:

  1. privacy and confidentiality;
  2. control over the formal process;
  3. quick turnaround time for a decision; and
  4. saving money that would have otherwise been spent on legal fees, court fees, and a trial.

There are instances wherein the award can be challenged. Once registered, the award is subject to review on a question of law, or it can be set aside if the Family Court makes a finding that one or more of the specific provisions concerning arbitration, as identified in the legislation, have been proven, but that is the exception, and otherwise, an award is treated the same way as a court order.

We have a number of lawyers who are willing to help you or someone you know through a property settlement, and we are happy to explore all types of ADR processes to reach an agreement without having to go to the Family Court.

About the Author: Stewart is a senior family lawyer at Lynn & Brown Lawyers. Stewart has a wealth of family law knowledge and experience. His pragmatic approach in dealing with matters enables his clients to make informed decisions.  

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