The Advantages of Arbitration in Family Law

31 Jan The Advantages of Arbitration in Family Law

The arbitration process is an essential part of family law. In fact, the Federal Circuit and Family Court of Australia (the Family Court) stresses that parties seeking court orders should first try to take advantage of dispute resolution, mediation and arbitration before turning to the court’s help.

But arbitration isn’t just a requirement of the Family Court. It also provides people going through a divorce or separation with a great deal of advantages.

So, here’s what you need to know about the arbitration process and how family law arbitration can help you.

What is the family law arbitration process?

In family law, arbitration parties appear before an independent expert (generally a barrister or lawyer) who acts as a judge and, after reviewing the matter, makes a binding decision about the issues. This is an out-of-court dispute resolution process that lets you get a final decision without having to go to Family Court. In many ways, you can think of this as a substitution for court.

How it works

There are two types of arbitration:

1. Court ordered – These arbitrations are also known as s13E arbitrations and deal with Part VIII proceedings (dealing with spousal maintenance or the property of parties to a marriage) or Part VIIIAB proceedings (dealing with de facto partners), only.
2. Private arbitrations – These cover a broad area of disputes such as superannuation interests, spousal maintenance and determining whether there is a de facto relationship in place, among others.

In both cases, however, the process is essentially the same.

1. First, one party sends the other a request for arbitration (or the court may order arbitration).
2. Second, the parties then agree upon arbitration, and an arbitrator.
3. Third, both parties (and/or their legal representatives) have a preliminary meeting. Here they lay out the issues that they want to discuss and agree upon for the arbitrator.
4. Fourth, the issues and other elements of arbitration are then set out in an arbitration agreement.

How is family law arbitration different from mediation?

Arbitration and mediation are often used interchangeably, but they are different processes. Though both are aspects of dispute resolution, with mediation the decisions of the mediator are not binding. And if one party refuses to abide by the mediator’s conclusions – or refuses to participate in mediation at all – then it simply won’t proceed.

Arbitration, on the other hand, results in a binding decision, provided the parties agree to register the decision with the Court, which parties are required to adhere to. Once registered with the Court then they can be brought to court to enforce the decision.

Benefits of arbitration

Family law arbitration offers significant benefits to the right clients.

• Control and flexibility –  In family law, arbitration gives clients a great deal of control over the process as well as flexibility in the way that the parties can arbitrate.
• Efficient and quick – With arbitration, the issues are typically resolved much sooner. While it can take years to get a court trial date, an arbitration can usually be scheduled within a couple of months.
• More reliable – Parties don’t run the risk of being sent away on their trial day. It’s not uncommon to turn up to court on the day of your trial to have the judge send you away to wait for the next trial date.
• Less complicated – There are simplified rules of evidence and procedure. This makes it easier to submit and review evidence and meet your disclosure requirements. In fact, a lot of information can be passed to the arbitrator via phone call.
• Private and confidential – Arbitrations are private, and the decisions are private as well. That means that all the information shared in arbitration is completely confidential and kept out of the public eye.
• Binding and enforceable – The decision in an Arbitration is an arbitral award and when it is registered in the with the Court it is binding an enforceable as it were made by Judge , so there are limited opportunities for appeal. That gives finality to the decision.
• Cost effective – Because the process is more efficient and quick, that means it’s generally (but not always) more cost effective as well.

Consult with a lawyer

Arbitration is very useful, advantageous and often preferable to going to Family Court. However, the best idea is to speak to a Toomey Family law specialist first to ensure that it’s the right process for your specific situation.