In this Q & A article we explain Family Arbitration. We provide information on how it works and the advantages and disadvantages of the process, to help you assess whether it may be an option for you to discuss with your family lawyer.
I thought arbitration was only for settling disputes about wages and working conditions. How does it work in Family Law?
Arbitration has been available in Family Law cases since 1991, yet it has been under-utilised, by both lawyers and their clients. It’s an alternative to going to court to settle disputes about the division of property, superannuation and spousal maintenance. A big advantage of Family Arbitration, as the process is called, is that it produces a final, enforceable result, like a court order, but usually at much lower cost, with less stress to the parties than having to appear in court, and with a result, called an award, within 28 days, rather than waiting months, or even years, for a hearing and then a decision from the court.
So, how does Family Arbitration work?
First of all it’s voluntary – a process that the parties to a marriage or a de facto relationship agree to pursue, rather than having a court trial.
Secondly it can’t be used where there is a dispute about where children are to live – it’s used to settle competing property claims by the parties.
Thirdly, the Family Arbitrator must be a lawyer, either a barrister or a solicitor, experienced in Family Law and who has completed specialist Arbitration training.
What are some of the advantages of Family Arbitration?
For starters, the parties themselves, rather than the courts, decide when, and where, the process will take place. If you go to court, you are at the mercy of the system – even getting a property case into court for an initial hearing can take months. Even then the court might have to adjourn the case because they are too busy. And that’s just the start – getting a final hearing can take another year or more.
Family Arbitration can also be used to decide only part of a property case, such as resolving the disputed value of a business, while the rest of the case, at the request of one or both of the parties, can be decided by the court.
By engaging a Family Arbitrator, the parties can agree on who it is going to be, from a list of specialist Family Arbitrators. If you go to court, you have no choice of which judge you will get, and they can vary quite widely in deciding on the same set of facts.
With Family Arbitration, you avoid the daunting experience of being in a courtroom, as well as being cross-examined in the witness box. Also, the parties can decide how the Arbitration is to be conducted, whether by oral evidence, including from any witnesses, or by written submissions, and where – for example in your solicitor’s office. Your solicitor or barrister puts your case to the Family Arbitrator.
Are there any disadvantages with Family Arbitration?
It can’t be used where the parties’ dispute is either wholly or partly about where children are going to live.
It may not be appropriate where there are complex property issues and/or the parties have entrenched position that require decisions by a judge. The ability to appeal against an Arbitrator’s award is limited.
So, is Family Arbitration for me?