If you have reached a stage with your ex where you have not been able to come to an agreement about how to divide your assets, and you have tried to resolve the matter by mediation, you are probably now considering going to court.
If you haven’t been told already, it can take many months and sometimes years for your matter to be determined by a Judge (if you don’t settle it in the meantime). It can also cost a lot of money if you engage legal representation as there are usually numerous adjournments, interim applications, valuations, and significant communication and correspondence needed to progress your matter.
There is also the terrifying prospect that when your matter is eventually listed for a final hearing, it will be adjourned on the day as there may be a more urgent matter that needs to be heard by the Judge (such as a parenting matter). And so your court proceedings continue.
There is another process more and more people are choosing to adopt to have their property settlements determined. It’s called arbitration and it’s been around for a very long time but, unlike mediations, it doesn’t seem to get the publicity it should.
Arbitration is a confidential and private process where an Arbitrator (a solicitor or barrister who has completed specialised training) is appointed by the parties to consider all of the evidence including submissions made by the parties and thereafter make a final decision (called an ‘award’). The award is then registered with the court and is final.
Arbitration is a contract-based resolution process whereby the Arbitrator (as opposed to a Judge) makes a decision about the dispute, and that decision is final (unless of course there are any appellable grounds such as a mistake of law, mistake of fact or an issue pertaining to procedural fairness or bias in which case the award can be appealed to the court). Unlike court, the entire arbitration process can be commenced and concluded within as little as approximately 6 weeks.
Think of Public vs Private healthcare. You can wait around in the public system for years in the queue, but with private healthcare, you get what you need faster and usually with a medical practitioner you have chosen. This is also true when comparing court proceedings and arbitrations. If you apply to Court, you can be in the ‘system’ for a very long time however arbitration ensures a swift resolution via a process that you are directly involved in planning.
Here is an overview of how most arbitrations work:
1. The parties select an Arbitrator.
- If the parties cannot agree on an Arbitrator, they can either approach the Australian Institute of Family Law Arbitrators and Mediators (“AIFLAM”) and ask them to appoint an Arbitrator or they can apply to the court for one to be appointed for them.
- If the matter is court-referred, the parties approach the relevant List Judge for an order and the court will then issue the order through to the appointed Arbitrator.
2. Once the Arbitrator is appointed, they will ask the parties for all material filed in the court to-date (if the matter is already before Court) or for a position statement from each of the parties. The Arbitrator will then prepare a draft arbitration participation agreement for the parties to consider.
3. Once the arbitration participation agreement is signed, the Arbitrator will call a planning meeting with the parties (and their lawyers). In this meeting, they will discuss the structure of arbitration to be used.
- ‘Off the papers’ – the parties agree on what documents are to be provided, or consolidated as well as each providing written submissions;
- ‘Off the papers’ but with a face-to-face event to provide oral submissions (but no further evidence); or
- An actual hearing with cross-examination (also known as the usual court process).
4. At the planning meeting, the parties will also discuss with the Arbitrator matters such as:
- Where the arbitration will be conducted (if there is any face-to-face aspect);
- The Arbitrator’s fee and how that is to be paid; and
- Timelines for the providing of documents, oral submissions, cross-examination, and when the award will be issued.
5. Following the planning meeting, the Arbitrator will send the parties a participation agreement for them to sign.
6. The parties comply with the agreed timelines for the process and the award is delivered by the Arbitrator within 14 days of the arbitration hearing.
7. The parties then register the award with the court.
Arbitration involves the parties in the planning of the process to ensure they completely understand it beforehand. It is a private and confidential process that provides parties with the certainty of efficient finalisation. Best of all, parties do not have to go to court to have their property settlement resolved.
There is a new Arbitration List in both the Family Court and the Federal Circuit Court that is dedicated to assisting the swift resolution of property settlement matters by referring parties to the arbitration. By the end of January this year (before the List was made), there were 141 matters that had been referred to arbitration. That number is set to rise significantly with the unavoidable further delays of matters due to the COVID-19 pandemic and the Arbitration List managing such matters effectively.
Arbitrations assist parties by alleviating controversy and resolving disputes in the least destructive way to the parties themselves, their families and the community as a whole.
At DA Family Lawyers, our Accredited Family Law Specialist Ms Deborah Awyzio is an Accredited Arbitrator and Mediator. In addition to advocating for their clients at court, D A Family Lawyers are skilled in representing clients in arbitrations and assisting them to achieve final results in short timeframes that are only available by adopting that process.