Litigation is without a doubt what most practitioners use and recommend to their clients as the ‘best, tried and tested, certain, appealable‘ family law problem solving tool. Do you offer your clients other options to help solve their legal problems, like mediation and/or arbitration? Or are these methods to be “boo hooed” as not ‘real‘ problem solving solutions, with too many drawbacks?
Are you a lawyer, who is so risk adverse that you don’t like to try new things, ‘don’t fix what aint broke‘ type of mentality, and you continue to practice with exactly the same methods as you always have, without any thought, action or contemplation of any other effective ways to solve your clients problems? Or are you a lawyer, who views the changes in society and law, and likes to engage in forward thinking, innovation with contemplation of the long court delays and costs of litigation and therefore willing to offer other methods to solve their clients matters? Or do you feel anxious when your clients case is finally over, and you want to keep your clients cases for as long as possible, keep the case moving along, albeit very slowly and costly, for all kinds of reasons, some yours and some your clients?
Women in particular will know what I mean when I ask – have you shopped for clothes and found a tag that says ‘one size fits all“? You look at it on the hanger and think that can’t be right or you try it on and realise ‘one size definitely does not fit all‘.
Is problem solving any different when it comes to a ‘one size fits all‘ approach i.e. there is only Court proceedings as a dispute resolution method? Or do we use value judgments when it comes to our clients, their case/resources/issues/property value/ complexity and more and offer the best solutions for THAT client i.e. court | mediation | arbitration | med/arb? A tailored service – surely clients would be happier with that?!
Legal Framework: Arbitration
The Family Law Act 1975 (Cth):
- Part II – non court based family services
- Part II – Division 4 – Arbitration
- Part IIIA – obligations to inform people about non court based family services and about court processes and services
- Part IIIB – courts power in relation to court and non court based family services
- s 67ZA – arbitrator suspects child abuse (mandatory reporter)
- s 125 Regulations
Section 12B Family Law Act 1975 (Cth) prescribes what information lawyers must provide to their clients about non court bases services, including “the arbitration facilities available to arbitrate disputes in relation to separation and divorce‘. Are you complying with your obligations?
Family Law Rules 2004 (Cth)
- Part 10.3 summary orders and separate decisions
- Rule 10.14 – what the Court may order under this Part
- Chapter 20 – enforcement of Financial Orders and Obligations
- Rule 20.01 – enforceable obligations
Family Law Regulations 1984 (Cth)
- Reg 67A – definitions for Part 5
- Reg 67B – prescribed requirements for arbitrator
- Reg 67C – matters that may not be arbitrated
- Reg 67D – application for referral to arbitration
- Reg 67E – application relating to relevant property or financial arbitration
- Reg 67F – arbitration agreement
- Reg 67 G – T – arbitration practicalities
The Family Law Amendment (Arbitration and Other Measures) Rules 2015
- Chapter 26B – arbitration
CJ Diana Bryant has endorsed and encouraged increased use of arbitration as a cost effective and timely method of resolving disputes, both in the media and by her attendance at the Financial Arbitration presentation, hosted by CIAA and AIFLAM.
What Cases Are Suitable?
Reg 67 C states “A Part VIII proceeding, a part of a Part VIII proceeding, or a matter arising in a Part VIII proceeding, with respect to property to which an approved maintenance agreement under section 87 of the Act applies, must not be dealt with by arbitration under the Act.” Otherwise, all other types of disputes are suitable for arbitration.
Have you cases that are parenting and/or property (small /house + garden case) and the cost of funding their case to final hearing is prohibitive and the parties want final resolution so they can move on with their lives? Have you offered your clients mediation (parenting) and arbitration (property) contained in a med/arb package? Or if only parenting, have you offered mediation, with any agreement reached formalised by consent orders? Or if only financial, would arbitration be the best problem solving solution – has it been offered (s12B Family Law Act)?
Why not audit your cases and determine if there are 2-3 matters that would benefit from med/arb (parenting/property) or arbitration alone (property) for final resolution, bypassing the long delays and high costs of court proceedings, to reach final resolution.
All dispute resolutions processes, including court proceedings, mediation and arbitration have their advantages and disadvantages, there are no “PERFECT” solutions. However, lets not get sidetracked by the apparent disadvantages of one method over another, without first considering all methods, attempting a different dispute resolution method (a few times) and then make a more informed choice about what methods may be useful to your clients?
Arbitration Process
A pre-planning meeting is held (in person, Skype, conference call) with clients, lawyers and arbitrator to establish:
- procedural framework
- exchange information
- organise facilities (who will attend, by what means, where?)
- nature of hearing
- procedural timetable
- time/place of hearing
- procedures to be adopted at hearing
- evidentiary requirements
- directions.
There are 3 types of arbitration models:
- Arbitration on the papers: decision is made on written submissions and any other documents provided
- Short arbitration: decision made on limited oral presentations (including short xx)
- Complex arbitration: decision made on full hearing (for complex |high wealth cases)
If counsel is briefed after the pre-planning meeting, they are bound by the agreements reached at the pre-planning meeting as the matter will be run according to what it agreed at that pre-planning meeting, unless of course issues arise after and that will require another pre-planning meeting to be convened to alter the agreement and vary the arbitration process.
Call me on (02) 9336 5399 or email me at louise.mathias@sydneybarrister.net.au today to organise your free 15 minute consultation to discuss any questions you may have on arbitration, or the best dispute resolution methods for your case/s (court, mediation, arbitration or a combination of these).
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