If you have a difficult 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.
After all, undertaking litigation and going to court can cause substantial delays to your case. Plus, litigation can also cause emotional strain and the process will likely cost you a large sum of money. As a result, some people use arbitration to resolve their legal matter instead of litigation.
What is Family Law Arbitration?
Arbitration is a private formal dispute process in which two or more parties agree to refer their dispute to an experienced and independent third person (known as the arbitrator).
The arbitrator will then determine the matter, reaching a conclusion that can be applied in the same way a court judgement would be. As the decision made by the arbitrator is final, the family arbitration process cannot be forced on someone, and both parties must mutually agree that arbitration is the best course of action to resolve their dispute.
As long as 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. While less complex cases may be determined on the basis of documentary submissions alone, 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 way of cross-examination.
Once the arbitrator has reviewed the documentation and any submitted evidence, the decision they reach is known as ‘the award’. As long as ‘the award’ has been made by someone qualified under the Family Law Act, it is enforceable in the same manner as a Court Order.
In making their decision, the arbitrator must firmly apply the principles set out in the Family Law Act in the same way that a Court would. Due to this, ‘the award’ can only be appealed on a question of law. This means neither party can appeal against the decision just because they don’t like it. Rather, they can only appeal if they think the law has been applied incorrectly.
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. This means that arbitration solicitors 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;
- Have completed a specialist arbitration course conducted by a tertiary institution or professional association of arbitrators; and
- 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 Act, then the award is not binding on the parties involved.
The Benefits of Family Law 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.
There are a number of benefits to undertaking arbitration in family law matters. For example, the process can:
- Greatly reduce the emotional stress and legal costs of litigation;
- Allow parties to make their own decisions about who will decide their dispute and how they make that decision;
- Allow people to set their own timeframe in which to settle their dispute;
- Mean that parties are able to move forward and make a new life for themselves in a matter of months rather than years;
- Ensure that 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 Family Law Arbitration
Although there are lots of benefits to the process, there are several disadvantages to using arbitration in family disputes. For example:
- The award (decision) is binding and as noted above, is only subject to appeal on a question of law;
- Until there is further clarification, there is uncertainty about whether an arbitrator has the power to make a superannuation splitting order;
- Until there is further clarification, there is also uncertainty about whether the states will grant stamp duty relief for property transfers that are provided for in an award;
- The process (while not as expensive as litigation), is more expensive than mediation because of the degree of formality required by this process;
- The process can only be used for financial matters and is not suitable for parenting matters.
Is Family Law Arbitration Right for Me?
Arbitration is a great way to resolve disputes, but the process isn’t suitable for everyone. Overall, the arbitration process is particularly suited to situations where financial affairs are straightforward, or where assets are not held in companies or trusts.
Similarly, arbitration is suitable for married and de facto couples who have separated. But, it may not suit circumstances where there is significant disagreement about facts as 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.
Contact Us to Learn More about Arbitration in Family Law Matters
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.
Additionally, both Damien Greer and Wendy Miller are trained arbitration solicitors in family law, and they can provide you with further information if you’re interested in the family arbitration process. If you’re considering arbitration for your dispute, then we recommend that you seek legal advice about whether your matter is suitable for arbitration. . To learn more about the process and to decide whether arbitration is suitable for your needs, please call us on (07) 3837 5500 or get started online.