Arbitration – what is it and how can it help you?
What is Arbitration?
Arbitration is an alternative dispute resolution process to Court which can help you to resolve your family law dispute. In arbitration, you undergo a private hearing before a “judge”, known as the Arbitrator. The Arbitrator makes a decision that is binding on the parties (the “award”).
What are the benefits of arbitration?
There are numerous benefits to arbitration, including:
- It is private. Court proceedings are open to the public and judgments are published (albeit they are anonymised). Arbitration awards are private and parties sign a contract which preserves confidentiality;
- It is faster than Court, which often takes over 2 years to reach a final hearing. An arbitration can be arranged in a relatively short space of time. Furthermore, judges can take up to 3 months to deliver a judgment (and sometimes more, if your matter is complex). Arbitrators must deliver their award within 28 days; and
- Awards have the same effect as a court order. They are registered with the Court and are enforceable.
However, arbitration is only available in property disputes, such as matters arising from division of assets, superannuation, or spousal maintenance. It cannot be used if there are parenting issues.
You can attend arbitration at any time during your property settlement process, including if there are existing proceedings before the Court. The Court may also order you to attend arbitration if it thinks appropriate.
What is the process for attending Arbitration?
Selecting an Arbitrator
Arbitration can only be done with the agreement of all parties. Once you have agreed that you will attend arbitration, you and your ex-partner will jointly select an Arbitrator. The Arbitrator is an experienced legal practitioner, usually a senior lawyer, barrister, or ex-judge. They must be accredited by the Australian Institute of Family Law Arbitrators and Mediators and have receive specialised training.
The Arbitration Planning Meeting
Once an Arbitrator has been decided, the parties and their lawyers will attend a meeting to discuss how the arbitration will be carried out, including:
- The scope of the arbitration. Parties can agree upon a set of facts to provide to the Arbitrator and ask them to decide only the outstanding issues. Alternatively, you can ask the Arbitrator to determine every aspect of the dispute;
- The timeline for preparing material and evidence;
- A list of witnesses who will need to provide evidence. There is an option to rely on witness statements instead, which will avoid the witness needing to attend arbitration;
- What rules of evidence will apply; and
- The date of the arbitration and other practicalities, such as venue.
You will also decide the model of arbitration that will be conducted. There are four main options:
- On the papers. The parties agree upon a bundle of documents to be provided to the Arbitrator, who will read the documents and make their decision without further hearing. This is the cheapest and most efficient method;
- Hearing for submissions only. The Arbitrator will read the agreed material, but lawyers will then have the opportunity to make oral arguments in support of your case. This allows the Arbitrator to question the lawyers and ensure they understand the arguments being made;
- Short hearing on limited issues. Parties can identify the most contentious issues for which cross-examination is required; and
- Full hearing. This most closely reflects a court hearing and will involve cross-examination and submissions.
All of the decisions will be documented and formalised in an arbitration agreement which parties sign.
Preparation of evidence
Once a timeline has been set, your lawyers will prepare your evidence. This will need to be provided to the other side so they are aware of your case and arguments. This step will also include further financial disclosure and valuations of businesses and/or properties, if necessary.
Attendance at Arbitration
Both parties will attend the hearing with their lawyer (and often, a barrister), who present their arguments and evidence. The Arbitrator will subsequently issue a written decision which can be registered with the Court.
What if you are unhappy with the award?
There are grounds for reviewing the Arbitrator’s award if you argue that there was an error of law. The Court can review the award and either affirm, overturn, or vary the award.
However, if there is no error of law, the Court can also review the award if:
- It was obtained by fraud;
- It is void, voidable, or unenforceable;
- There may have been bias on the part of the Arbitrator;
- There may have been a lack of procedural fairness in the way the arbitration was conducted; or
- Circumstances have arisen since the award was made that make it impracticable for part or all of the award to be carried out.
Arbitration is an excellent option if you wish to maintain privacy about your separation and finalise your dispute as soon as possible. For more information, contact our experts at [email protected].