If you are involved in a family law dispute, there are options other than court proceedings that can help resolve your matter. In most cases, we recommend participation in alternative dispute resolution processes such as negotiation, mediation or arbitration. These processes can minimise costs and provide a viable alternative to lengthy litigated court proceedings.
What is arbitration?
Arbitration involves a professional person with expertise in a particular area (the arbitrator) who makes a binding decision after each party presents their argument and evidence.
Family law arbitrators are legal practitioners who are either accredited as a family law specialist or have practised as a legal practitioner for at least 5 years in circumstances where at least 25% of their workload has involved family law matters. They must also have undertaken specialist training in arbitration.
Family arbitration is voluntary – you and your ex-partner can agree to a private arbitration, or if court proceedings are in progress, arbitration may be directed by the court.
Arbitration is not used to determine parenting matters and is limited to certain financial matters, mainly complex property settlement/adjustments, spousal maintenance and declarations of property interests.
Arbitration can also be used to determine a specific issue in the context of your overall family law matter. For example, an arbitrator may be appointed to determine the value of business interests in more complex family law matters. Once determined, this can lead to more meaningful negotiations regarding a final property settlement.
Family arbitration may also be used for interim determinations in certain matters.
Decisions made by an arbitrator, also known as ‘awards’ are registered with the court. They are binding and have the same effect as an order made after a court hearing.
What is the difference between arbitration and mediation?
Mediation is considered a facilitative form of dispute resolution, where parties are encouraged to explore options and reach their own agreement with the help of a mediator. The parties meet in a ‘without prejudice’ environment and the mediator guides the parties through the issues and encourages them to engage in meaningful negotiations.
Arbitration, however, is determinative. After hearing the evidence presented by each party, the arbitrator will make a binding decision.
In very limited cases, usually where an error of law has occurred, a determination made by an arbitrator may be reviewed by the court. In such cases the court can confirm, reverse or vary the decision.
Benefits of arbitration
With an increasing strain on the family court system and a backlog of matters waiting for hearing, arbitration has become an important process to help reduce some of this burden, and to resolve disputes quicker and more cost-effectively than proceeding through the court.
Arbitration is consensual. Not only must the parties agree to attend arbitration, but they must also agree on who shall be appointed as arbitrator, the issues to be dealt with, the estimated time required, the costs, and how the arbitration will be conducted (this includes matters such as how documents and evidence should be presented/exchanged).
We have extensive family law experience and are skilled across all aspects of dispute resolution processes. We understand the importance of resolving family law disputes in non-adversarial ways wherever possible. Our lawyers can help you decide whether arbitration is a suitable option to help resolve your family law matter.