With wait times for hearings continuing to increase, more and more people are opting to use methods of resolving family law disputes that do not involve going to Court.
Of all the methods of Alternative Dispute Resolution (ADR) available, Arbitration is the most formal. In it, parties who cannot settle on how to divide their property agree to present their arguments and evidence to an independent arbitrator, who then decides how to resolve the dispute. The parties agree beforehand to accept the Arbitrator’s decision, and to be bound by whatever they decide.
Each party usually must have a lawyer to participate in Arbitration and it is common to brief counsel the same as if the matter was going to Court. Arbitrations often go into the same level of detail and evidence as a final hearing, and so can involve a lot of time and preparation. They are not suitable for all matters. However, in situations where a couple has a large amount of property or complex business assets, Arbitration can have significant advantages, such as:
– Getting a comprehensive, binding resolution in months, rather than years;
– Lower costs than running the matter to a final hearing;
– A choice of venue, date and scope; and
– A choice of decision-maker.
Parties can choose to arbitrate about the whole of their property matter, about a discrete issue such as disputed facts or a valuation, or about what is to happen with interim issues. Arbitration is only for property matters and cannot be used to resolve parenting issues and can take place even if a matter is already in Court.
Once the Arbitration has finished, the Arbitrator’s decision is registered with the Court through a special “Arbitration List”, which hears and registers outcomes quickly to give them the force of law. Parties unhappy with the Arbitrator’s decision can technically appeal, but unless the decision was manifestly unreasonable or involved an error of law, the outcome will remain binding.
If you are in the process of separating and would like to discuss the possibility of resolving your matter through Arbitration or another form of ADR such as negotiation, mediation or collaborative practice, speak to a member of Hunt & Hunt’s family law team today.
Article prepared by Benjamin Keyworth, Associate