One of the variety of options that have sprung up to help alleviate the delays in the Family Court system is arbitration. But what is it?
Arbitration is a process in which parties to a financial dispute (property division, spousal maintenance) present their arguments and evidence to an arbitrator, who makes a determination to resolve the dispute. It has been said to be akin to a ‘private Court’.
There are two kinds of arbitration – Court ordered or private.
With Court ordered arbitration – where Court proceedings are already on foot – agree on who is to be appointed as the arbitrator (usually a senior member of the legal profession – a barrister or a former judge) and, with the consent of all parties, the Court may make an order referring the proceedings (or part of the proceedings) off to arbitration.
With private arbitration, the parties may appoint an agreed arbitrator to determine their financial matters.
Arbitrators are experienced legal practitioners who are specially trained and accredited in arbitration. Arbitrators must be accredited by Australian Institute of Family Law Arbitrators and Mediators (AIFLAM) to be able to conduct family law arbitrations.
Once the matter has been heard by the arbitrator, their determination is known as an Award. If the matter is a Court ordered arbitration, that Award can be sent to the Court and the Court asked to make orders in accordance with the Award. If it is a private Arbitration, the parties can then formalise the Award by way of a Financial Agreement or an Application for Consent Orders if they wish.
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