Divorce can be as expensive as it is upsetting, particularly if it ends up in a drawn-out courtroom trial. But a lengthy and costly day in Court isn’t the only way to handle a divorce.
Alternative dispute resolution (ADR) methods can speed up the process, lower your costs, and minimise the impact on your family.
Common ADR processes in Australian family law include:
- Negotiation – a voluntary, usually informal, process in which both parties identify issues of concern and explore options to resolve those issues.
- Mediation – a process in which an impartial professional helps both parties reach mutually agreeable solutions to the unique issues at large for your family.
- Collaborative law – an out-of-court settlement process where both parties and their lawyers co-operate to build information, and identify and simulate options, t try to reach an agreement about the issues in dispute.
- Family dispute resolution – a special type of mediation that helps separating families come to their own agreements about children and parenting issues
- Arbitration – a ‘private trial’ in which both parties agree to appoint a decision-maker to impartially rule on their financial dispute
All of these ADR methods have a common goal – an ‘out of court’ solution.
In this blog, we’ll take a close look at arbitration.
What’s arbitration?
At first glance, arbitration is very similar to a courtroom trial.
Two opposing parties put their case on the legal issues in dispute to a neutral third party, known as an arbitrator. The arbitrator fulfils a role similar to a judge.
Each party presents their case, and their supporting evidence, before the arbitrator makes a decision. Importantly, the arbitrator’s decision is final and legally binding, and therefore can be enforced by a court.
But, despite the parallels, arbitration is usually faster, less costly and less formal than a traditional divorce hearing. That is because parties can agree to a much shorter timetable than would be applicable in Court.
In some cases, couples can even agree to present their case and evidence entirely in writing, with the arbitrator making a decision based on those documents only. This model, while not suitable for all cases, can deliver even more cost-effective outcomes, as there is no ‘hearing’.
What are the advantages of arbitration?
Arbitration has several attractions over a contested trial in Court, including:
- Flexibility – Arbitration can take place when, where and how the parties choose. That means you can arrange arbitration hearings at a time and location that is most convenient for you.
- Choice – The arbitrator is chosen by both parties, unlike court where you won’t have any say over the judge appointed to determine your case.
- Speed – You don’t have to wait on available court dates, and the arbitrator can make directions for a framework to ready your case to be arbitrated, so you can wrap up your case relatively quickly.
- Cost – While not without cost, this option is likely to save you money, given it takes an average of two-plus years to get a trial in the formal court system
It’s worth pointing out that ADR processes such as arbitration aren’t all-or-nothing. So it is possible to define the issues that will be determined by the arbitrator, leaving other issues for determination by a court.
What are the disadvantages of arbitration?
You should take the following into consideration:
- While the arbitrator’s decision is binding, there is a right of appeal. But the same is also true of decisions of a judge in a court. An appeal from an arbitrator’s decision is, however, only open in limited
- Arbitration cannot be used to resolve parenting disputes – they can (unless able ot be resolved in some other ADR process) only be determined by a judge in Court.
- The process may not be appropriate when serious domestic and family violence is involved, although, working with the arbitrator, safety plans and other mechanisms to provide for personal protection can be put in place (similar to appearances in a court).
Ultimately, arbitration is worth considering for separated couples who have not been able to resolve their financial dispute, but want to save legal costs by ‘fast forwarding’, and having a decision rendered about their dispute without waiting around for 2 years for a trial.
We Can Help
Going through separation and divorce is never easy. But at BGM Family Lawers, we believe a problem shared is a problem halved.
BGM Family Lawyers is a Specialist Gold Coast Family Law firm situated in Coomera, providing expert family law advice and legal representation.
We’ve helped people from all walks of life through family law situations and we can help you too.
Get in touch by emailing info.bgm@bgm.legal or calling 1300 246 529 – we can even see you remotely/electronically (MS Teams, Zoom, telephone).
