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Can a focus on arbitration help change the landscape of family law?

By November 22, 2017October 21st, 2021No Comments

By Gianna Huesch

Excruciatingly long delays in the family court system often prompt family law practitioners to urge clients to consider their Alternate Dispute Resolution options, in particular the too often-overlooked process known as arbitration.

Now, family lawyers have expressed a new hope that the Australian Law Reform Commission’s current sweeping family law review will “rework the system” to create a “desperately needed paradigm shift” which will ensure arbitration becomes a much more common choice, helping to free up the backlog in the family court system.

Arbitration is a dispute resolution process existing outside the court system which still delivers a legally-binding decision. With arbitration, parties agree to a different forum than the courts, but without forgoing substantive legal rights or the ‘bonus’ of having an unbiased authority make a  binding decision in a matter.  It can usually be scheduled far sooner than a trial and is usually speedier and cheaper to conduct.

Parties to a dispute present arguments and evidence to a trained third party, usually a lawyer and often an ex-Judge, who is known as an arbitrator. The arbitrator reviews the evidence from both sides and makes a determination to resolve the dispute.   Mirroring the rules around court proceedings, parties have a duty of disclosure to the arbitrator, and the issues in dispute are determined according to the relevant family law.  Once registered, the arbitrator’s decision (called the “award”) is as binding and enforceable as if it were a decree of the court.

Arbitration can be done ‘on the papers’, online or over the phone and involves no time in court. One of its great advantages is it is a confidential process, kept private between parties, compared to the family court system which operates on an ‘open justice’ basis.

Another benefit of arbitration is that parties retain substantial control over the timing and the degree of formality or informality involved. It’s also possible to arbitrate a single aspect of a case (eg. determining the value of a business or asset or establishing issues of fact in dispute) which may be holding up settlement of a case.

So why hasn’t arbitration been more popular until now? It’s thought that arbitration has been under-utilised in Australia for a number of reasons. These include concerns over costs, a general uncertainty about the process, and fears over difficulties in organising arbitration.  There can also be confusion over whether or not arbitration awards are truly final (in fact, there is a “high degree of finality”) and what options there may be for review or appeal (these options do exist).

At present, arbitration in family law can only be used by separating couples to divide assets and determine outcomes in property and maintenance cases. While parenting issues and child support issues may not be arbitrated at this stage, family law practitioners hope that the ALRC’s review will pave the way for reform to enable arbitration to also be made available to parties in custody disputes.

Indeed, the Government has already flagged its intention to bring arbitration into the realm of parenting disputes: earlier this year, Attorney-General George Brandis announced that the Government would spend $12.7 million trialling a lawyer-free arbitration system, holding ‘parenting management hearings’ in Sydney.  At the time, Mr Brandis noted that “the litigation model is not always the best model…We’ve got to design the system to ensure the disputes finish on fair terms as early as possible, rather than being dragged on with delays, expense and trauma”.   However, family law practitioners are hopeful that reform will go further than such a lawyer-free system.

Meanwhile, for property disputes, a quick and well-organised arbitration which costs a fraction of what you might spend on legal fees for litigation, remains a realistically achievable method of resolving your dispute, and should definitely be considered.

Source: https://www.lawyersweekly.com.au/wig-chamber/22252-reworking-the-system

Would you like to discuss with a family lawyer whether your matter may be suitable for arbitration rather than litigation?  Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 to arrange a cost-free, no-obligation initial consultation.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance.

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