Blog post by Daniel Sampson
What is Arbitration?
Arbitration is a non-Court based process whereby parties present their case to an independent Arbitrator, selected by the parties, to make a determination on an issue. The determination is final, subject to the usual appeal processes.
The parties may choose to have the benefit of legal representation at Arbitration if they wish.
What can be arbitrated?
Arbitration in Australian Family Law is limited to financial matters, such as property settlement, spousal maintenance and financial agreement. Children matters cannot be determined by Arbitration.
Arbitration can be limited to a single issue or can encompass a complex financial settlement.
Who would the Arbitrator be?
Under the regulations an arbitrator must be:
- a Legal Practitioner who is either accredited as a Family Law Specialist recognised 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; and
- 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.
The regulations ensure that the arbitrator is an experienced lawyer or specialist and has the requisite skills to undertake the arbitration.
What are the benefits of Arbitration?
- Selection of the Arbitrator by the parties
- The continued presence of a single arbitrator or arbitrators
- Speed of the process compared to Court (e.g. no backlog, no court lists… etc)
- Flexibility with respect to time and location
- Flexibility in terms of agreed rules of evidence to be used… etc
- Flexibility of procedures
- Parties can determine scope of the Arbitration (e.g. single issues, complex matter, whole ‘trial’ arbitration)
- Privacy and confidentiality – not subject to open court
- Costs may be cheaper than litigation or Court-based processes
- Other ADR processes may be accommodated such as mediation to narrow issues or conciliation
- Appeal rights may be waived meaning it is a final binding decision
- User pays means savings on the public purse
What are the possible disadvantages?
- Costs can be high depending on the length and complexity of the mediation
- Non-Court based decision means right of appeal in Court is limited
If you think Arbitration may be for you, Culshaw Miller Lawyers can help.