Should you consider Arbitration as an alternative to property proceedings in Court?
If you have separated but are unable to finalise your property and financial matters with your former spouse by way of a negotiated agreement, you may wish to consider Arbitration as an alternative to the Family Court process. Arbitration is generally a much more flexible option for parties looking to avoid the rigidity of the Court process, while still obtaining a decision. The following questions and answers are intended to assist you to determine whether arbitration is suitable for your dispute.
- Is my matter suitable for the arbitration process? Arbitration is generally limited to resolving financial disputes between parties such as disputes in relation to a property settlement, spousal maintenance or financial agreements. Arbitration is not suitable for disputes regarding children. You may wish to discuss with your lawyer whether your specific circumstances are suited to this process.
- Who will make the decision? Unlike Court, where you are allocated a Judge to determine your matter, in arbitration both parties play a role in choosing the person who will ultimately determine their dispute. Your lawyer can assist you to choose the right arbitrator for your circumstances and ensure they are appropriately qualified and have the requisite experience, as well as explaining what you are agreeing to by signing an Arbitration Agreement.
- What is involved in the arbitration process? The arbitration process is highly flexible and may differ depending on the circumstances of the dispute. Generally, parties will have an initial meeting with the arbitrator to enable the arbitrator to get an understanding of the issues in dispute and the assets available for distribution between the parties. Then, in a staged process and within a set timeframe, parties will present their arguments and evidence to the arbitrator. This process usually ends with a hearing in which the arbitrator may ask questions and clarify points on the arguments and evidence submitted by the parties.
- Is the decision binding? After the completion of the process, the arbitrator will make a decision, which will be provided to the parties in writing, setting out the arbitrator’s reasons for their decision. Once the arbitrator’s decision is registered with the Family Court, it will have the same effect as an order of the Court and will be binding on the parties.
- What if I don’t agree with the decision? Should you not agree with the outcome, you may apply to have the arbitrator’s decision reviewed by a single judge of the Family Court, but only in very limited circumstances. Further, by agreeing to be bound by the arbitrator’s decision, you may be prevented from later bringing proceedings in the Family Court on the same subject matter, or the Court may be directed to the terms of the arbitrator’s decision.