Family Law | Arbitration vs Mediation, weighing up what is right for you
There are various options available to assist parties to resolve their Family Law dispute outside of litigation, including mediation and arbitration. This article provides an overview of both options to assist you to consider what may be suitable to resolve your dispute.
Family Law Arbitrations have been available to parties for some time, however, have only recently started to gain traction as an alternative to having the Court determine the dispute.
If considering undertaking an Arbitration, there are a few things to first consider:
- Arbitration first requires both parties consent.
- It is a process where you engage a qualified Arbitrator to determine your dispute, usually a barrister or experienced solicitor. The process can be done by submitting your case in writing or face to face (by way of oral submissions and cross-examination);
- Arbitration can only be used to resolve a financial dispute and therefore cannot be used to resolve parenting and custody issues;
- Arbitration may be a quicker way to determine the dispute, rather than waiting for the Court to list a Final Hearing (which in some jurisdictions can be a matter of years). Arbitrations are privately funded and therefore the parties need to absorb the Arbitrator’s fees, venue hire, recording and transcription services and costs associated with providing the Arbitrator with all the relevant documents (which may mean copying documents produced under subpoena). Therefore, if you have a small asset pool an Arbitration may not be economical;
- If privacy is a concern, Arbitration will be of benefit, as you can choose where and when the Arbitration will occur and the hearing will not be open to the public, like in open court. When the Arbitrator hands down the award it is not reportable and therefore will not be published decision;
- Arbitration Awards are enforceable upon registration with the Court. Although the process of registration is relatively uncomplicated, there are grounds to object to the registration of the award if a party is dissatisfied with the outcome. If a party objects to the registration then it is open for the Court to reconsider the reasons provided by the Arbitrator;
- If the award has been registered, it becomes binding and enforceable as an Order of the Court. If a party is still aggrieved with the award after it has been registered, the award can be reviewed (resulting in the matter being reheard by a Judge), set aside or varied. A party can only seek to have the award set aside or varied in limited circumstances, which are narrower than if a party objects to the registration of the award.
- Overall, Arbitrations can be a very useful tool to resolve a dispute, particularly if privacy is an issue.
- Parties do however need a certain degree of trust in the process, as often a disgruntled party may try and seek a review as a means to have another bite of the cherry, so to speak.
Mediation is a process in which parties attempt to resolve issues in dispute with the assistance of a neutral independent mediator, usually an experienced barrister or solicitor.
The process can be as informal or formal as they like. Under the Family Law Act parties must attempt to resolve their dispute before filing an Application to the Court. If the dispute involves children, then you need to evidence you have attempted mediation by attaching a mediation certificate (which is called section 60 I certificate). If your matter concerns Family Violence then mediation may not be suitable and is not compulsory before filing an Application with a Court.
If considering a mediation, there are a few things to consider:
- If the mediation concerns property, then you both need to have a good idea of what the assets and liabilities are, and what they are currently worth. If there is a disagreement as to the value of an asset, then you may need to consider independent valuations of the assets before the mediation.
- Although a mediation will only be successful if both parties are genuinely committed to resolving the dispute, the process may result in a narrowing of the issues and therefore can be the start of achieving a resolution down the track.
- If the dispute concerns children’s issues, mediation may not be suitable if there is a history of family violence or if there is some urgency to get a resolution of the issues.
- Mediations are compulsory in the Family Court if your matter involves property and are called Conciliation Conferences, conducted by a Registrar.
- If you successfully negotiate a settlement at mediation, then usually the mediator drafts up short terms which reflect what was agreed upon. Following the mediation, the solicitors then draft up the terms into Orders which are then filed in the Family Court and become binding.
- Mediations can be useful to ensure the parties remain in control of the outcome and preserve or improve the level of communication between the parties. It can also be more cost-effective than filing an Application in the Court.
If you have separated and are looking for alternatives to potentially costly litigation, please contact me to discuss whether your personal situation is suitable for Arbitration or a Mediation. Both are useful tools to settle a Family Law dispute without litigation, although both require some level of co-operation between the parties. It is therefore important that you seek legal advice before considering what may be suitable for your circumstances.