If you have a difficult financial family law matter that you need to resolve, then you may find that the family arbitration process can help you resolve it without the need for court action.
Advantages & Disadvantages of Arbitration
Like with any conflict resolution process, there are both pros and cons to using arbitration in family law disputes. For this reason, before you begin arbitration, it’s important that you consider the positives and negatives carefully, so you can decide whether the process is the right one for you.
Advantages
• Less stressful and can be less costly than litigation
• Allows parties to choose who will decide their dispute and the degree of formality in the process to make that decision (award)
• Allows parties to set their own timeframe in which to settle their dispute
• Faster resolutions than litigation (usually resolved in months, rather than years)
• Ensures private details are not aired in a public forum, such as a courtroom (other than in extreme circumstances).
• Is a useful option for parties who have mixed financial and parenting matters as they can have their financial dispute arbitrated immediately after their parenting matter is settled
Disadvantages
• The award (decision) is binding, and can only be appealed on a question of law;
• It requires clarification if an arbitrator has the power to make a superannuation splitting order
• The award has to be registered with the Court in order to obtain stamp duty relief for property transfers provided for in an award
• The formality required usually means that arbitration is more expensive than mediation
• The process isn’t available for parenting matters.
Who is qualified to carry out arbitration in family law matters?
The Family Law Act is clear about the requirements for a trained and qualified arbitrator. Arbitration lawyers in family law must:
- Be a legal practitioner who is either an accredited family law specialist, or someone who has at least 5 years post-administration practice experience (of which at least 25% must be related to family law)
- Has completed a specialist arbitration course conducted by a tertiary institution or professional association of arbitrators
- Be included in the list of approved mediators maintained by the national body for family law arbitrators and mediators.
If the arbitrator does not have the experience and qualifications to be approved under the Family Law Regulations, then the award is not binding on the parties involved.
Is Family Law Arbitration right for me?
Arbitration is a great way to resolve disputes, but the process isn’t suitable for everyone. The arbitration process is best suited to situations where financial affairs are straightforward, or where assets are not held in companies or trusts.
Arbitration is ideal for married and de facto couples who have separated. However, it may not suit circumstances where there is significant disagreement about facts asserted by each party. Similarly, it will also not be the preferred process if there are issues about parties complying with their obligation to fully disclose financial information.
Family Law Arbitration Experience You Can Trust
At Damien Greer Lawyers, we have a team of experienced lawyers who can prepare your matter for, and represent you, during the family law arbitration process.
Both Damien Greer and Wendy Miller are trained arbitration lawyers in family law and can provide you with further information. If you’re considering arbitration for your dispute, we recommend you seek legal advice about whether your matter is suitable.
Damien Greer Principal
We take into account the constantly changing business and personal circumstances of our clients.