Family Law Arbitration

Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs

Last month I wrote about mediation and how effective it is as a means to resolve disputes quickly and cost effectively.

There is another process in the Family Lawyers toolkit, called Arbitration.

Family Law Arbitration is, like mediation, a voluntary process where an accredited Arbitrator decides the property case instead of a Judge. The parties must choose an Arbitrator from a list of accredited Arbitrators, which can be found at www.aiflam.org.au.  (AIFLAM is the national body for family law mediators and arbitrators).  The parties must agree how the Arbitration is to be conducted -  whether the decision is to be made just on written documents, or whether other evidence is required; what documents are required; when those documents are to be produced, and so on.

The Arbitrator will consider the evidence and submissions, and applying the relevant case law and legislation, decide the property case and give the parties a written Judgement called an “award”. 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 have a say in the process.

• The Federal Circuit Court, where most family law property matters are dealt with, is an incredibly busy place. Most registries have a wait of at least 12 months, before your property case can be heard; in some Registries down south people wait for three years. In Cairns there are no more trial dates available this year. Whereas, an Arbitration can be finalised in weeks.
• 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 – I was recently told that the cost of an average family law trial is $43 000. Each. Many trials cost more than $50 000 each. Who has that sort of money?

Whereas, 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?

Yes, but there is no getting around the fact that the Arbitrator isn’t a Judge and hasn’t had years of deciding cases; although having said that there are retired Judges on the AIFLAM list. However, 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 the matter. You can also be assured that an Arbitrator will do everything to ensure that they give a decision that is within the range of what the court would decide 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 as a family lawyer 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.

Mediation, Arbitration, or a combination of both processes, can help separated people resolve their property settlement quickly, with considerable cost saving and less emotional stress.

• COSTS – I was recently told that the cost of an average family law trial is $43 000. Each. Many trials cost more than $50 000 each. Who has that sort of money?

Whereas, 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?

Yes, but there is no getting around the fact that the Arbitrator isn’t a Judge and hasn’t had years of deciding cases; although having said that there are retired Judges on the AIFLAM list. However, 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 the matter. You can also be assured that an Arbitrator will do everything to ensure that they give a decision that is within the range of what the court would decide 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 as a family lawyer 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.

Mediation, Arbitration, or a combination of both processes, can help separated people resolve their property settlement quickly, with considerable cost saving and less emotional stress.