Arbitration is an alternative dispute resolution process in which each party (usually represented by their lawyers) present their arguments and evidence to an Arbitrator. After hearing from each party, the Arbitrator issues a determination to resolve the dispute.
Arbitration is a different process to mediation. In mediation, the parties seek to resolve their dispute by reaching an agreement with the help of an accredited Mediator. In Arbitration, the Arbitrator makes their own determination as to the outcome of the issues in dispute very much like a Judge would if the matter had proceeded to hearing.
What matters may be arbitrated?
The parties to a family law dispute can agree to a private arbitration without the need of commencing Court proceedings. Alternatively, if Court proceedings have been commenced, Arbitration may be ordered by consent.
Currently, the issues that can be arbitrated are limited to financial matters such as property settlement, spousal maintenance, and Financial Agreements. Parenting/children’s matters are not currently matters that can be dealt with in an Arbitration.
Who are the arbitrators?
The Australian Institute of Family Law Arbitrators and Mediators (AIFLAM) maintains the list of trained and qualified Arbitrators.
Under the relevant Regulations an Arbitrator has to be:
- A Legal Practitioner who is either accredited as a Family Law Specialist recognized as such by the relevant State Law Society or Association or who has practised as a Legal Practitioner for at least 5 years with at least 25% of work done in that time in relation to Family Law;
- Has completed specialist arbitration training conducted by a tertiary institution or professional association of Arbitrators; and
- Is included in a Law Council of Australia list of Practitioners approved by the Council which is the list now maintained by AIFLAM.
What are the advantages of Arbitration?
(please note the extract below is copied from AIFLAM at https://www.aiflam.org.au/arbitration.php)
The advantages of arbitration include:
- Control of the process and the degree of formality. The arbitration can be designed to meet the needs of the individual parties and their issues.
- Flexibility. An arbitration does not require the same level of formality as a Court hearing.
- Convenience. The arbitration can be held at a time and place, and in accordance with a timetable, agreed between the parties and the arbitrator.
- Choice of decision-maker. The parties are able to choose an arbitrator in whom they have confidence.
- Avoidance of delay. By setting their own timetable, the parties can avoid the delays inherent in the formal Court processes, obtain a prompt resolution of disputed issues, and have certainty that the hearing will take place on the agreed date.
- Promptness of decision. The arbitrator agrees to provide his or her award and reasons within a specified period (generally not later than 28 days from the hearing).
- Confidentiality. Arbitration takes place in a confidential setting. Arbitrators take an oath not to disclose any communication or information received in their capacity as arbitrator.
- Binding result. An arbitral award is a conclusive determination of the dispute subject to rights of review provided in the Act, and is binding and enforceable.
- Cost. By designing an arbitration process which meets their individual needs, and avoiding the costs engendered by the formalities of the Court processes, parties can achieve significant costs savings. Further, as a result of arbitration taking place at a time of their choosing, valuations remain current and the expense of updating material is avoided.
Arbitration can be a particularly valuable option for parties who have mixed children and financial matters and are having their parenting issues dealt with under Division 12A, who can proceed to have their financial issues arbitrated immediately after the children’s proceedings are completed without suffering further delay.
Our Principal, Ghania Dib, is a qualified Family Law Arbitrator and on the list of Arbitrators maintained by AIFLAM.