What is arbitration?
Arbitration is a process (other than the judicial process) in which parties to a dispute using lawyers if they wish to, present arguments and evidence to an arbitrator who makes a determination to resolve the dispute.
Its main difference to mediation is that in mediation, parties seek to reach their own agreement on matters with the assistance of the mediator.
In some respects arbitration mimics Court processes but has certain advantages which are detailed in following sections.
What matters can be arbitrated?
Arbitration can be ordered by consent in matters in which there are current proceedings before the Court or parties can agree to have a private arbitration without the need of issuing Court proceedings.
However the issues that can be arbitrated are limited to financial matters such as property settlement, spousal maintenance, and Financial Agreements. Children’s matters such as who children live with and who they spend time with, are not matters that can be dealt with in an arbitration.
Who are the arbitrators?
AIFLAM maintains the list of trained and qualified arbitrators. Under the 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.
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.
It 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.
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