Arbitration is a voluntary process whereby the parties agree that the chosen Arbitrator will decide their property case (or part of it) instead of going to court, and give them a written Judgement (an “award”). The parties agree the process, the timetable and what information is to be provided. The Award can be registered with the Court and is then binding and enforceable.
The Award can be reviewed by a Judge on questions of law; and/or set aside on certain grounds, such as fraud, non-disclosure for example, and if there was a lack of procedural fairness in the Arbitration.
The only limitation placed on Arbitration is that it is limited to property settlement and spousal/defacto maintenance issues. An Arbitration cannot deal with parenting matters or child support issues.
What is great about Arbitration? It is timely, cost effective AND you control the process.
- Some Registries have a three year wait for a property trial. An Arbitration can be finalised in a matter of weeks with a decision being guaranteed within 7 days.
- You and the other party, with your lawyers, agree the process. Will it be an Arbitration on the papers? What is the timetable for provision of information? What information will the Arbitrator receive? Will there be any affidavits/oral evidence/cross examination? ( NB whilst an Arbitration can mirror a trial, most arbitrations are ‘on the papers’).
- COSTS – A Trial will cost each party a minimum of $30 000 and sometimes more than $50 000 each. An Arbitration on the papers can be as little as $3000, shared by both parties.
- The Arbitration can be used to resolve part of the property dispute with other matters being heard by the Court. It can also be combined with mediation.
Will the person doing the Arbitration be any good?
- You can’t be accredited as an Arbitrator unless you are a Family Law Specialist. This gives you confidence that an experienced family law specialist is deciding their matter. You can also be assured that an Arbitrator will probably spend hours researching the law that isn’t charged for, as we have our reputation – and therefore our livelihood – at stake if we get it wrong! Further if there is an error of law the Award can be reviewed by a Judge.
- Arbitration is perfectly suited where the property pool is not substantial – where you don’t have a lot to argue about.
What’s in it for lawyers? – Some lawyers may not agree but in my opinion the files that made me the most money also caused me the most stress and took up the most time. The best files, in my practice. are the ones dealt with quickly, where the client is reasonably happy with the outcome (and went off to recommend my services!) leaving me to take on more work.
In summary Arbitrations can be dealt with quickly, often within a matter of weeks or months with considerable cost saving and less emotional stress.
Fees – $350 per hour plus GST. An arbitration on the papers for example, usually involves about 10 hours’ work, depending on how much the lawyers can agree about the process, for the arbitration agreement, and the documents required to be read and considered.
Fee Guarantee – If an award made by me is reviewed and there is a finding as to an error of law I will refund the Arbitration fee.