If you want to explore how does arbitration work in Australia, it would be helpful to understand its meaning. Basically, Arbitration is a non-judicial, binding process in which parties can resolve their family law disputes without going to Court. Essentially, this process involves mediation and negotiation. Here, each party presents their arguments or evidence to an Arbitrator who makes a determination, resolving their dispute. This process is voluntary and can occur through agreement by the parties or by court referral. Once a decision is made it is known as an ‘arbitral award’ and it is binding and enforceable on the parties. For this reason, these awards can be very difficult to appeal.

Who is an arbitrator?

An Arbitrator is an experienced legal practitioner who has trained in arbitration. They are typically an accredited Family Lawyer. Someone who has worked within the family law system for many years and can provide arbitration services. Whilst arbitrators can be judges, for arbitration purposes they do not act within their capacity as a judicial officer of the Court.

The Pros and Cons of arbitration 

Whilst this process to understand how does arbitration work in Australia may seem to simplify and speed up a family law matter it is important to consider the advantages and disadvantages of arbitration. Some examples of the advantages of arbitration include:  Firstly, a faster and more cost-effective way to resolve a property settlement. Secondly, increased flexibility in the process. Thirdly, more control over the process;. Finally, a confidential resolution.  However, there are also disadvantages to arbitration. These include, for example, a limited right to appeal an Arbitrator’s resolution. Furthermore, if a matter involves issues of family violence, abuse or a high level of conflict then arbitration may not be appropriate. Additionally, family law matters are complex and if one party has a higher negotiating power or more resources than the other then arbitration may not be useful.

When can arbitration be used? 

Arbitration is entered into voluntarily by the parties to resolve one matter or multiple issues in a dispute. As such, it can be useful to narrow the issues of contention involved in a matter without the parties going to Court. Arbitration may be useful for issues such as determining the value of an asset or reaching a fair settlement. However, it is not possible to use arbitration for some issues in Family Law, specifically, and somewhat surprisingly, parenting matters. We highly recommend seeking legal advice from our Family Lawyers if you are considering using arbitration to solve your dispute. To discuss your Family Law matter and find the best option for you, please contact our Sydney Family Law team on 02 9891 6388.

New South Lawyers’ communications are intended to provide commentary and general information. To that end, people should not rely on this communication as legal advice. Accordingly, they should seek formal legal advice for matters of interest arising from this communication.

To find out more, chat with a member of New South Lawyers' Family Law Team today.