Australia: Arbitration: Alternative dispute resolution in family law

But only a Judge can make an enforceable decision.

Well, no.

Over the years, Arbitration has enjoyed recurring periods of popularity. I recall attending at least two launches of 'new' Arbitration programs and training. Both touted this dispute resolution process as the 'way ahead' but lawyers seem to have lost their 'way'.

All the same advantages apply to this process in terms of saving time and money for the parties but this process offers something extra which clients see as an advantage of the traditional court system: someone makes a decision for them.

Over my years of practice (but particularly in the earlier years), many clients have refused to settle for what they saw as the outcome dictated by their former spouse but were prepared to accept the same outcome 'if that's the decision the judge makes'. Unfortunately, getting before a judge can take years of time, money and distress and then there is no certainty as to the outcome.

So why aren't people jumping at the chance to avoid the court queue and have their family law matter dealt with by Arbitration?

For a start, there are still not many trained family law Arbitrators in Brisbane, although numbers are on the increase with figures almost doubling over the last year or so.

There are approximately 60 Queensland based Arbitrators listed on the Australian Institute of Family Law Arbitrators & Mediators (AIFLAM) website, with most of those listed being in and around Brisbane. For many of them, this is just another string to their bow as part of their day-to-day lives as busy solicitors and barristers. However, interstate Arbitrators appear prominently in the Queensland list, clearly being prepared to undertake arbitrations on a FIFO basis.

Arbitration also cannot deal with parenting disputes but it could be used to resolve any associated property matters and, at least, reduce the duration of any trial that would otherwise involve parenting and property issues.

Although not limited to the family law arena, there also is an argument put forward by some opponents to Arbitration that arbitrated disputes will affect the growth of precedents if courts do not have access to cases decided by this process. That argument arises because Arbitration is a confidential process. This is a whole separate topic and one for discussion at another time.

Admittedly, Arbitration is far more common in other areas of law, notably commercial law where many contracts provide for disputes to be resolved by arbitration. It is understood that the Arbitrators have obligations to be unbiased and to act as a judge would.

But Arbitration has again received a shove onto the family law stage and people are starting to understand the advantages of this process under the Family Law Act.

So how does a 'mere mortal' make decisions that were previously the exclusive domain of family law judges?

The Family Law Act specifically deals with Arbitration in Sections 10L, 10M, 10N, and 10P.

Section 10L provides the following definition of Arbitration:

(1) Arbitration is a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.

Section 10P confirms the immunity of arbitrators:

An arbitrator has, in performing his or her functions as an arbitrator, the same protection and immunity as a Judge of the Family Court has in performing the functions of a Judge.

Further, Regulation 67S of the Family Law Regulations 1984 ensures that an Arbitrator's award can be enforced as if it were an order:

A party to a registered award may apply for enforcement of the award as if the award were an order made under Part VIII of the Act.

Before hanging up a shingle proclaiming to be an Arbitrator, practitioners considering life as Brisbane's next gun Arbitrator should read the Family Law Regulations 1984.

Specifically, Regulation 67B sets out the prescribed requirements for an arbitrator (also referred to in Section 10M of the Act):

For the definition of arbitrator in section 10M of the Act, a person meets the requirements for an arbitrator if:

  1. the person is a legal practitioner; and
  2. either:
    1. the person is accredited as a family law specialist by a State or Territory legal professional body; or
    2. the person has practised as a legal practitioner for at least 5 years and at least 25% of the work done by the person in that time was in relation to family law matters; and
  3. the person has completed specialist arbitration training conducted by a tertiary institution or a professional association of arbitrators; and
  4. the person's name is included in a list, kept by the Law Council of Australia or by a body nominated by the Law Council of Australia, of legal practitioners who are prepared to provide arbitration services under the Act.

Arbitration has become a hot topic of conversation again. There were 2 papers about Arbitration presented at last year's Family Law Practitioners Association (Qld) Residential Conference at the Gold Coast. Both were by eminent family lawyers.

Since that Conference, a number of senior practitioners have mentioned to me that they planned to undertake Arbitration training – and clearly they have as training opportunities have been advertised and, apparently, taken up by many keen Queenslanders. I may do the same – it will fit nicely beside Mediation & Collaborative Practice in my family law tool box.

The tide may be slowly turning but, as the under-resourced Judges tread water (while many involved in pending court matters expect them to walk on the surface and perform miracles!), Arbitration is likely to find favour soon as it has the potential to overcome the substantial delays and costs associated with a Trial and it offers to "bonus" of someone making a decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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