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The Knight in Shiny (New) Armour – Arbitration

By 12 September 2017Family Law

Throughout the year we attend many seminars, conferences and other professional development events which are informative and often eye-opening. However, I have attended a recent training session which has left me buzzing with inspiration and excitement for what lies ahead. It is becoming an often repeated rhetoric that the Family Court system is failing families. Generally, this failure is attributed to the unbearable delays which result in families being left in crisis mode for many years whilst either awaiting a trial or awaiting the delivery of a judgement after the trial itself. But, my recent training in arbitration with the Australian Institute of Family Law Arbitrators and Mediators (AIFLAM) has delivered me a glimmer of hope and an alternative to the traditional Court path.

Arbitration is a process through which parties present their argument and evidence to an arbitrator, who then makes a decision as to the outcome. This decision is delivered by way of an “award” which is recognised and enforceable as if it were an order of the Court. Arbitration has been around for many years, however, seems to have been treated as the neglected middle child in the family law system. We have the oldest child being the Court system, which has been around since the creation of the Family Courts in 1975. The Court is often presumed to be the golden child, placed on a pedestal, holding all of the answers to every family law problem. But, over 40 years on, the Court system is now becoming increasingly overloaded and somewhat clogged – which is having a significant delay on the expediency of matters, and ultimately slowing down the way in which matters are resolved.

Arbitration has been sitting on the sideline since the 80’s. It’s got fresh legs, and is raring to be utilised. However, the arrival the attention-seeking youngest child, “mediation” overshadowed arbitration’s entry into the family law world. Mediation is, and always will be, a highly effective way of achieving outcomes for people in family law, as the outcomes are entirely controlled by the parties themselves and allow the parties to move on with their lives in a more harmonious fashion.

The Court system and mediation have developed into creatures heavily relied upon by the users of the family law system. Arbitration is emerging as the Cristiano Ronaldo of the family law sphere, utilising its holistic and dynamic approach to fill the position as centre forward. There are nearly 85,000 new matters filed in the Federal Circuit Court of Australia each year. Each judge has over 400 matters in their docket at any given time. This is just too much for this system to handle. As a result, our valued judicial officers who have an obligation to give each individual matter the consideration it requires, are often simply unable to produce outcomes within timeframes that the families before them require. Unfortunately, if a matter cannot be resolved by mediation or negotiation, then you could be looking at a wait of two to three years for a trial. This is not the fault of the judges, who are dealing with up to 40 matters on any given day; this is simply a system that is sadly under resourced and unable to keep up with demand. This system is screaming out for an alternative, and that is why the time for arbitration is now.

In simplistic terms, arbitration is similar to a “pick your own adventure” novel. Basically the parties elect to participate in arbitration, select the arbitrator (decision-maker) and determine the method which is to be applied. No system defines how your matter will be handled, and with the assistance of some experienced and creative legal practitioners, a model can be established which ensures that both parties are heard and an outcome delivered, often within a matter of weeks. The arbitrators in Queensland include retired judges, barristers and even local solicitors – depending on your “adventure” you select the level of experience required.

Although you are required to pay the arbitrator, which you naturally do not do when you are in the Court system, the cost of arbitration is often significantly less than what you would spend if you remained in the court system for another two to three years awaiting a trial. Naturally the cost of your stress, uncertainty and the time in which your life is put on hold is immeasurable.

I cannot understand how a process with so many benefits has been overshadowed by its more shiny siblings for so many years. I believe the two biggest benefits of arbitration are:

  1. Timeliness – you can have your matter heard and an award made (similar to an order) within a matter of weeks to a couple of months. This is compared to a Court system whereby you would not be assigned your first Court date until approximately two to three months after filing. To think that your whole matter could be resolved within this time is truly astounding;
  2. Flexibility – the process is tailored around your dispute, not the Court system. This means that if your matter is fairly straight-forward then your matter may be considered by the arbitrator on the papers. This means that neither of you would be required to attend a hearing or be cross-examined, which has clear benefits! Conversely, however, the arbitration can be conducted in a manner which is so similar to a Court hearing, the only thing missing might be the lack of a wig. The arbitration can be tailored to your particular circumstances – not what suits the greater population and is most easily administered. It truly can be “pick your own adventure”!

It is important to be aware that presently arbitration is only able to be conducted in relation to property matters. It is not suitable for matters involving parenting arrangements…yet. Whist I am certainly not on the Law Reform Committee, nor profess to have a great deal of knowledge of the agenda of Parliament, I am confident that in the future this will be reconsidered and we will see arbitration being used as a tool to resolve all family law matters.

My parting words are – embrace it. It is a new frontier into which we foray, however, one which is certain to bring about closure sooner and results which are more satisfying and allow you to move on with your life and plan your future; rather than wondering what the future will deliver to you and when this might come.