Arbitration is a formal dispute process in which two or more parties agree to refer their dispute to an independent third person (the Arbitrator) for determination. Provided the arbitration is conducted according to the principles of natural justice its process may be varied by the parties to suit the size and complexity of their dispute.
Less complex cases may be determined on the basis of documentary submissions alone which can reduce its costs significantly.
Complex cases may benefit from a more judicial style of hearing in which formal applications and responses are lodged and evidence is put forward by each party and tested by cross-examination. Parties to Arbitration in complex matters will have the advantage of an adjudicated result that is not constrained by the time frames presently encountered in the Federal Family Court arena.
The result of the Arbitration is known as the `award’ and is enforceable in the same manner as a court judgement under the Family Law Act. The arbitrator must apply the principles set out in the Family Law Act as the Court would do. Arbitration is only conducted with the agreement of both parties. It cannot be forced on anyone. The award (decision) is binding on each party subject only to an appeal on a question of law.
An award by an arbitrator who is not approved under the Family Law Act is not binding on the parties.
For more complex matters we are able to identify former Judicial Officers and senior members of the legal profession who are suited to the role of arbitrator for particular matters.
The Benefits of Arbitration
- Can greatly reduce the financial stress, emotion and legal costs of litigation.
- Parties can make their own decisions about who will decide their dispute and how they make that decision;
- Parties can set their own time frame in which to settle their dispute.
- Disputes are generally resolved faster.
- Parties are then able to move forward and make a new life for themselves.
- Private details are not aired in a public forum such as a courtroom. However, in some circumstances arbitrators are compelled by law to report matters to the relevant authorities. It is therefore important to discuss the issue of confidentiality prior to signing an arbitration agreement.
The Disadvantages of Arbitration
- The award (decision) is binding and only subject to appeal on a question of law.
- The process while not as expensive as litigation is more expensive than mediation because of the degree of formality required by this process.
This process will not suit everyone
Arbitration is suitable for married and de facto couples who have separated. It may not suit circumstances where there is significant disagreement about facts as asserted by each party. Nor will it be the preferred process where there are issues about disclosure of financial information. You should therefore seek legal advice about whether your matter is suitable for arbitration.
Damien Greer and Wendy Miller are trained Arbitrators and can provide further information to those people interested in this process.