Can’t resolve your financial dispute via mediation? Don’t want to wait two years plus for a decision from a Family Court Judge or Magistrate at Trial? Then maybe arbitration is for you…
What is Arbitration?
Arbitration is a vastly underutilised resource that can allow you to move on with your life much more quickly – and cost-effectively – than a “traditional” Court Trial or Court process.
An arbitrator is akin to a Judge or Magistrate and makes a decision that is fully binding on the parties, but there are some key points of difference between a final hearing in the Family Court and an arbitration hearing.
Arbitration vs Litigation
Arbitration can only deal with property or financial issues between parties. Parenting arrangements, e.g. with whom the children will live or whether one party can relocate interstate with the children, are beyond the scope of arbitration.
Parties can choose/agree on a particular arbitrator to determine their matter. This luxury does not exist in the Court process, where Judges and Magistrates are simply assigned to a case. Arbitrators are experienced lawyers who have undergone specialised arbitration training.
Our Managing Director, Milos Supljeglav is a qualified Arbitrator, as well as an Accredited Family Law Specialist and Dispute Resolution Practitioner. He can either represent you in an arbitration, or be appointed to determine the dispute as the decision-maker.
Parties can agree a date, time and place for the arbitration to occur, whereas Court Trials are largely a case of “take what you get”. If full disclosure of all relevant issues and documents takes place promptly and both parties act in good faith, there is no reason why an arbitration hearing can’t take place within, say, three months of the dispute arising. Contrast that to the 7-8 months it takes to reach even the Conciliation Conference stage at the Family Court from the date of filing your Application – and the further 18 months or so it will likely take your matter to reach a Trial.
Moreover, arbitrators will usually agree to provide their written decision – with reasons – in a month or less. Family Court decisions after Trial routinely take a minimum of three months, but often longer.
The Arbitration Process
Unlike the rule and process-driven proceedings in the Family Court, arbitration can be as flexible as the parties wish and can be tailored towards the circumstances of the particular disagreement.
In most cases, the arbitrator will hold a separate initial meeting with both parties and their solicitors to discuss the type/form of arbitration required, grasp the issues in dispute, form an understanding of e.g. the net asset pool for distribution and also, perhaps, address (and ideally) resolve any preliminary issues (such as valuations or other expert evidence that may be required).
Sometimes the parties have already agreed a particular percentage split, but cannot agree on how e.g. a business valuation should be conducted. So, arbitrations can be quite limited in scope, and deal with specific aspects of a wider dispute.
Once the parameters of the dispute and the most appropriate type/form of arbitration have been considered by the arbitrator (and agreed between the parties), each party will submit their respective arguments and present their evidence to the arbitrator within certain specified time limits.
The final arbitration hearing before the decision is made (unless it is an “on the papers” determination) usually involves the attendance of the parties, and the arbitrator has the power to compel the attendance of witnesses s/he considers essential.
Arbitrations can also take place over video-link, significantly reducing the cost involved to either one or both parties. The arbitrator must give each party the opportunity to be heard and, like a Judge or Magistrate, may ask questions to clarify issues they may be unclear about. If the parties agree, the strict rules of evidence which apply in standard family law cases need not bind the arbitrator.
Can I Appeal an Arbitration Decision?
General speaking, it is only in very limited circumstances (usually on a matter of law) that a party can apply to have the arbitrator’s decision reviewed by a Family Court Judge.
In almost all cases, the decision will be binding if one party registers it with the Family Court. However, if both parties are unhappy with the outcome, the decision does not have to be registered at all. For the most part, if parties jointly agree to be bound by the arbitrator’s decision, they will likely be unable to then file proceedings in the Family Court relating to the same issues.
As should be evident, the primary advantages of arbitration are expediency, cost-effectiveness and flexibility.
How to get an Arbitrator
If you are interested in discussing the possibility of arbitrating your dispute, please contact DS Family Law for more information to help you decide whether this process might be for you.
We have experience in both mediation and arbitration, and can advise as to the most appropriate approach in each individual case.
As previously noted, our Managing Director, Milos Supljeglav, is also an Accredited Family Law Specialist, Mediator, Arbitrator and Family Dispute Resolution Practitioner.
Let’s meet, and figure it out
For practical advice about what you should do next, please call to arrange a no-obligation initial consultation.