In the process of separation or divorce, most couples manage to come to an arrangement as to who gets what assets.
Unfortunately, there are some who reach an impasse and simply can’t come to an agreement.
This can happen when couples try to resolve a particularly vexing issue like the value of a business or trust, or simply because emotions run high.
In these cases, arbitration is a smart alternative to giving in to the other party or enduring a long and costly battle in the family court.
In an ideal situation, the couple agrees to be sensible and rational about the process, they seek out and get good legal assistance, and they’re willing, if necessary to participate in dispute resolution procedures, such as mediation or arbitration.
Mediation and arbitration are two forms of alternative dispute resolution (ADR), which are other methods used to resolve a family dispute and avoid the need to go to court.
While mediation encourages parties to come to their own agreement, arbitration involves an independent third party, usually a lawyer, to hear the evidence from both sides and make a legally binding decision.
How does Arbitration work?
Arbitration proceedings are like court proceedings but far easier and more flexible, informal and private than going through the courts. The expense is also a fraction of the cost of a formal court hearing.
Arbitration has been available in the Family Law Act for years, but it’s been widely under-used.
It’s only since amendments to the Family Law Act came into effect in April 2016 that there’s been a comprehensive and practical arbitration system available to separating couples.
If couples decide to take the path of arbitration, both parties must agree to appoint an arbitrator; an experienced family lawyer, ex-judge or official who is specially trained in arbitration.
The parties enter into an ‘Arbitration Agreement’ which covers the nature of their dispute, including the specific issues like property, how the proceedings are to be conducted, and how much it will cost. The parties usually engage family lawyers and perhaps barristers to assist them as part of the process.
The hearing then proceeds and unless the dispute is resolved along the way, the arbitrator then hands down his/her decision. This decision can be registered with the family courts and becomes as binding and enforceable as a court order.
The parties walk away with an authoritative decision like the one they’d receive from a judge following a court hearing but in a much shorter time frame,
Arbitration can be a smart alternative
Arbitration can resolve matters in weeks, rather than two to four years through the family courts.
It helps the separating couple come to a sensible outcome regarding their property matters.
And with family courts currently under huge workloads and financial restraints, it can help reduce the backlog of cases faced by the courts, so they can concentrate on doing the job of protecting children and dealing with complex parenting and property disputes.