Pub­li­ca­tions

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.

Arbi­tra­tion

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

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.