What is Family Law Arbitration?
Arbitration is a dispute resolution pathway in the family law world. It essentially involves the parties agreeing to appoint an independent lawyer to act in the role of the judge and make a binding determination on issues in dispute.
Why use family law arbitration?
The key benefits of arbitration are:
- Speed – you don’t have to wait months or even years for a hearing date and judgment to be handed down. Most arbitrations are complete within 3-6 months for small matters or 6-9 months for larger matters.
- Choice of arbitrator – you and your former spouse can decide who to appoint as arbitrator. For example, if your dispute turns on the valuation of a complex family business, you might choose an arbitrator with a background in accounting.
- Confidentiality – any member of the public can watch court proceedings but arbitrations are private.
- Binding decision – the arbitrator’s decision can have the same effect as court orders, so you know there will be some finality if the other party has been difficult to negotiate with.
What can be arbitrated?
Only property and financial matters can be arbitrated – not parenting matters.
You can also choose to arbitrate only part of a matter – for example, if you and your former spouse agree on how to divide your assets but can’t agree on spouse maintenance, you can just arbitrate the spouse maintenance component, or if you can’t agree on the value to be attributed to a house you could have an arbitrator determine that for the Judge to use in the overall proceedings.
What is the process of Arbitration?
You and your former spouse have a lot of control over what the arbitration process looks like in your matter. At the outset, you will each sign an arbitration agreement setting this out, generally in as much detail as you like.
Common examples of processes used are a decision to arbitrate ‘on the papers’ (each party sends materials to the arbitrator, who makes a determination in their office) or you can decide to engage barristers to present oral arguments and/or examine witnesses like in a trial.
Advantages of Arbitration
- Controlled by you
- Binding like court orders
Limitations of Arbitration
- Both sides must agree to participate.
- Parenting matters cannot be arbitrated.
- It is harder to appeal an arbitral award than a court order.
- Arbitral awards cannot bind third parties.
Who is the Arbitrator?
Usually, an arbitrator is a legal practitioner who specialises in Family law and has been trained and accredited as an arbitrator.
What happens once the arbitrator has made a decision?
The decision made by the arbitrator is called an ‘arbitral award’. It can be registered with the Family Court and is then just as binding and enforceable on the parties as if it were made by a judge.
Where does the Family Arbitration take place?
In whichever conference facilities you and your former spouse decide to use – usually, a solicitor’s offices, barrister’s chambers or Law Society rooms.
Arbitration at FGD
We are experienced in advocating at arbitrations and find that clients sometimes save time and money when they go down this road instead of court. If the benefits of arbitration are appealing to you then please contact us to discuss.