Family law litigation is a time-consuming and expensive process. Two years can elapse between the commencement of litigation and the determination of a matter on a final basis. To resolve matters expeditiously, parties should consider alternative dispute resolution mechanisms such as family law arbitration and family law mediation.
The benefits of family law arbitration are that:
- the costs of arbitration are typically less than they would have been if the matter had progressed to a final hearing; and
- matters can be finalised within a few weeks or months.
What is the difference between family law arbitration and mediation?
In family law arbitration and family law mediation, an impartial third person assists the parties to resolve a dispute.
In mediation, a mediator assists the parties to communicate about a settlement for property or parenting matters by filtering negative communication such as criticism and blame and delivering messages between the parties so they can focus on reaching a resolution. The mediator can assist to clarify issues between the parties that are still outstanding and suggest potential solutions.
A Family Law arbitrator can determine a property dispute on a final basis. The arbitrator reviews evidence and submissions presented by the parties and provides them with a decision in the form of an arbitral award. If parties have attended mediation but are unable to reach a resolution, an arbitrator can make an impartial decision for them sooner than a Court.
What qualifications do arbitrators have?
Family Law Arbitrators have extensive experience deciding family law matters. They are legal practitioners with at least five years’ experience and at least 25% of their work in family law. Arbitrators have completed specialist arbitration training. Some are former family court judges.
What kind of matters can be arbitrated?
Only property matters can be arbitrated. It is not possible to arbitrate parenting matters. However, for family law matters including disputes about property and parenting, the property issues may be resolved through family law arbitration.
Property matters include financial agreements, superannuation, and spousal maintenance.
What is the process for arbitration?
Both parties must consent to arbitration. Some arbitrators may hold a Directions Hearing where they will make directions about documents the parties are to file in preparation for a hearing.
Normally, simple property matters can be heard over a one-day hearing. The parties present evidence and arguments to an arbitrator.
The scope and the processes involved in arbitration can be determined by the parties. For example, the parties may request for arbitration to be on one discrete aspect of the matter with the remaining issues to be resolved by a Court or by the parties themselves by consent. If the parties do not wish to present any oral submissions, then the decision can be made based on written submissions only. The parties need not call witnesses for oral evidence or appear before the arbitrator.
At the conclusion of family law arbitration, the parties are given an arbitral award setting out the arbitrator’s reasons for making the award and the findings of fact in the matter. The award can then be registered with the court. Section 13H of the Family Law Act 1975 provides that the award once registered takes effect as if it were a decree made by the court.
What if I am not satisfied with the arbitral award?
If both parties are unsatisfied with the award, they may agree not to register it, in which case it would not take effect.
If one party has registered the award but the other party is unhappy with it, they have 28 days to apply to the Court giving reasons why the agreement should not be registered. Reasons can include that that the arbitrator was not properly qualified or that the parties did not consent to arbitration.
A seeking variation or reversal of an award will generally be required to prove there has been an error of law. The error may be that the award was:
- Obtained by fraud;
- Obtained through arbitration, but circumstances have now arisen making the award impracticable;
- Affected by bias or lack of procedural fairness; or
- Void, voidable or unenforceable.
It is important to ensure absence of bias and procedural fairness in arbitrations. Arbitrators are trained to avoid private meetings with parties or their solicitors and to maintain the formality of proceedings.
Arbitration usually produces a binding decision quickly and efficiently, allowing the parties to move on with their lives after separation.
Contact us if you or someone you know needs legal advice or representation in a family law matter or in any other legal matter.
