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Should you consider family law arbitration?

By May 17, 2022February 23rd, 2024No Comments

Thinking about avoiding litigation and pursuing alternative dispute resolution options for your family law dispute? You may already be aware that one such option is arbitration, or it may be new to you. Either way, let’s take a look at when arbitration might be the best solution to resolve your dispute.

What is arbitration?

Arbitration is a private dispute resolution process that mirrors the court process but occurs outside the court setting. Parties present their case to a neutral, independent arbitrator, who determines the outcome of issues in dispute. The arbitrator essentially takes on the role of a judge.

To participate in arbitration, which can be organised at any time, both parties need to agree. Parties essentially self-design the process, including choosing the arbitrator, deciding the scope of the arbitration, and working out how the arbitration will be conducted including picking a convenient venue and time.

Parties jointly choose their arbitrator based on their particular needs in the dispute. This means that you can handpick your arbitrator according to how appropriate their expertise is to your issues. 

Parties agree on the matters to be dealt with in the arbitration, the estimated time needed, how the arbitration will take place, the estimated costs and all other relevant details. Once agreed, these details are set out in an arbitration agreement that both parties sign.

The arbitrator’s decision is called an “award” and it is binding on the parties once registered with the courts. Registered awards are treated like court orders – they are legally enforceable.

One of the biggest advantages is that arbitration is a private and confidential process, compared to the open justice system of the courts. Awards are not published. Another advantage is that arbitration can usually be organised more quickly.

When is arbitration suitable in family law disputes?

The most important thing to know is that only property and financial matters are permitted to be arbitrated. Parenting disputes are not able to be arbitrated. Therefore, arbitration is limited to matters related to property settlement, including superannuation, spousal support, and disputes over Binding Financial Agreements.

It’s particularly well suited to those who want a faster resolution of their property settlement, as the process of arbitration leads to a swifter outcome than going to court does. And it’s ideal for those who want a higher level of control over the process of resolving their family law dispute.

There’s also less time pressure to conclude negotiations, as the arbitration can be suspended at any time. By contrast, judges issue strict deadlines due to the obligations of running their list.

Another kind of matter where arbitration can be beneficial is a multi-party dispute. Rather than bring in a third party to court and have them sit through the entire trial (with their legal representation), you can opt to only bring that third party in on a particular discrete issue.

You can read the Federal Circuit and Family Court of Australia’s fact sheet on arbitration here.

You might also like to read how the alternative dispute resolution processes of arbitration, mediation and collaboration differ.

Speak to us for advice on whether a private arbitration is the best fit for your particular circumstances and dispute, or what your other options are. Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

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

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