Arbitration

What is Arbitration

Arbitration is another form of alternative dispute resolution. It is a non-judicial method of resolving disputes where two or more parties refer their dispute to an independent third person (the arbitrator) for determination (the award). Arbitrations are usually conducted pursuant to legislation and in the case of family law disputes the relevant legislation can be found in sections 10L to 10P and sections 13E to 13K of the Family Law Act 1975 (Cth) and Part 5 of the Family Law Regulations 1984 (Cth).

The essential difference between arbitration from court proceedings is that the parties determine how the arbitration is conducted including the type of arbitrator, the degree of formality and the time place and duration of the arbitration.

Arbitration, as a form of dispute resolution, is widely utilised in commercial disputes and is an appropriate forum for resolving family law property disputes as it is;

  • Efficient and quick
  • Private and confidential
  • Final and enforceable
  • Conducted in accordance with the law.

Arbitration is a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.” (s10L)  The following applies strictly to arbitrations within the family law jurisdiction.

It is important to understand that there are two forms of arbitration, court ordered  (s13E arbitrations) and private arbitrations. Section 13E arbitrations can only deal with Part VIII proceedings or Part VIIIAB (but not in relation to a Part VIIIAB financial agreements) proceedings.  Private arbitrations have a broader area of disputes that can be determined (see s10L). Below is a list of all the type of disputes that can be arbitrated – those highlighted in blue are the disputes s13E arbitrations are restricted to. To avoid doubt, simply adjourn any existing court proceedings with a relevant notation rather than obtain a s13E order unless certain only the restricted areas require an award.  

  • Property including declaration of interests and superannuation splitting orders [1]
  • Spousal maintenance
  • Setting aside of orders pursuant to s79A
  • Declaring the existence of a de facto relationship
  • Declaring the validity of a binding financial agreement (ss90G,90K and 90KA)
  • Proceedings pursuant to s106B (to set aside a transaction)

Child support or parenting matters are unable to be arbitrated for the purposes of the Family Law Act.

Who Is An Arbitrator

The relevant provisions governing the registration of arbitrators speaks to the high level of experience required. An arbitrator needs to meet the following qualifications and standards (see reg 67B);

Forms of Arbitration

As the parties ultimately determine the procedure for arbitration there are many different variations and no one strict “model” of arbitration however the following are the most common;

  • On the papers arbitration: Here the parties file or lodge their evidence in affidavit form and thereafter lodge written submissions to the arbitrator who then makes an award. There is no “hearing” as such and neither party gives evidence or is cross-examined. This is the most cost and time effective form of arbitration and suitable where there are not detailed findings to be made or complex issues to determine. Indeed, this form of arbitration is most appropriate where the dispute revolves around weight to be given to s79 matters.
  • Panel arbitration: More than one arbitrator is appointed to either provide a perception of impartiality – i.e. male / female – or where one arbitrator is from a particular field of specialty such as an accountant where business valuations may be in issue. A panel can be used for all forms of arbitration however there may be a slight increase in costs of the arbitrators.  (See Queensland Arbitrations)
  • Final offer (or pendulum) arbitration: Where the decision is made based upon the most reasonable of the offers exchanged between the parties. This type of arbitration promotes the parties to be reasonable in their positions in order to “win” the arbitrator’s decision; if the gap between the two positions is small the parties may bridge it themselves by splitting the difference rather than running the risk of ultimately being unsuccessful. This form of arbitration is particularly useful where parties agree upon most factual issues but are simply at an impasse upon the outcome. The disadvantage in this form is that the parties may make quite disparate and inequitable proposals leaving the arbitrator with no alternative but to adopt the least inequitable option.
  • Simple arbitration: Where the parties agree that there is to be some limited formality to the arbitration process including the giving of oral evidence / cross-examination but may not require the formal rules of evidence to apply nor the evidence to be recorded.
  • Complex arbitration: These arbitrations follow procedures similar to court where evidence is given under oath and is recorded. Whilst the process may take longer and cost more the arbitration itself is still likely to be cheaper and provide the parties with an outcome far sooner than a judicially-determined outcome.

 

What Are The Events Leading Up to Arbitration

Firstly there needs to be agreement between the parties about whether arbitration is appropriate for their dispute as the consent of the parties is required (see s13E where the proceedings are already in court). See article I wrote about the Pro’s, Con’s and Myths of Arbitration which may demystify issues surrounding arbitration.

The following are just some examples / reasons why arbitration is likely to be indicated for your dispute

  • A desire to get off the emotional rollercoaster of litigating in court
  • Sufficient disclosure has occurred[2]
  • Neither party has a tactical advantage by delaying the outcome
  • The lawyers understand arbitration and its processes
  • A good arbitrator is available
  • Family law court waits are long
  • Family law court “docket” judge may be undesirable for particular matter – for a range of reasons
  • Privacy is important
  • Parties desire to avoid adjournments or delays
  • Parties desire a fixed cost
  • Parties suspicious of court system
  • Parties wish to custom build the process to their dispute
  • Parties may wish to use arbitrator’s experience to assist design a process for their dispute
  • The dispute does not involve a significant number of credit issues that are crucial to the outcome
  • No significant issues of personal safety involved [3]

What Happens at an Arbitration

Once the parties agree upon arbitration and an arbitrator, the first step is for the parties (legal representatives) and the arbitrator to have a preliminary arbitration meeting. This meeting is to define the issues the arbitrator is to determine and to discuss, agree upon and execute an Arbitration Agreement. It is the Arbitration Agreement itself that spells out what is to happen at the arbitration.

The step that may occur leading up to and during the arbitration can be variable and range across a continuum of the following;

 

No lawyers present

Solicitor and barrister present

One arbitrator

Panel of arbitrators

One affidavit from party

Number of affidavits from party plus witnesses

No other documents

Exhibit book

No opening address

Opening address

No evidence / cross-examination

Evidence in chief plus cross examination

Parties not present

Parties present

No actual hearing

Arbitration conducted in quasi-tribunal rooms

Strict time limit

Flexible time limit

No recording of evidence

Evidence recorded and transcribed

No discovery

Full discovery

Minimal issues

Detailed issues

Agreed statement of facts

Determination of facts

 

In arbitrations involving me I have a standard checklist of matters to consider prior to the preliminary arbitration meeting. This can be viewed here. A sample of an Arbitration Agreement can be found here.

Who Can Be Present and Confidentiality

Who is present at the arbitration is obviously a matter for agreement. The Arbitration Agreement signed by the parties will either provide that it is a condition of the arbitration that the proceedings are to be confidential or otherwise. Ordinarily the parties desire the proceedings to be confidential. That does not mean however that a family law court cannot receive into evidence what was said or filed in the arbitration upon a review of the decision of the arbitrator pursuant to s13J.

Voluntary Process : Arbitration Agreement Cannot Be Departed From Without Agreement

Any application to a family law court for referral of a proceeding to arbitration must be made jointly by all the parties to the proceedings (reg 67D) and a Court can only make such a referral if the parties consent (see s13E). It follows therefore that proceeding to arbitration is voluntary.

It also follows that only where the parties agree to all of the following matters in their arbitration agreement that an arbitration can proceed;

  • the name, address and contact details of each party to the arbitration;
  • the name of the arbitrator;
  • the date, time and place at which the arbitration is to be conducted;
  • the issues to be dealt with in the arbitration;
  • the estimated time needed for the arbitration;
  • information about how the arbitration will be conducted (for example, information about the exchange of documents and witness statements, scheduling and receiving expert evidence);
  • the circumstances in which the arbitration may be suspended or terminated;
  • the estimated costs of the arbitration, including the costs of any disbursements that may be incurred in respect of the arbitration (for example, hire of a venue for the arbitration).

See reg 67F

 

How Long Will It Take

How long the arbitration ultimately takes is, again, a matter for agreement between the parties and the arbitrator. Ordinarily, an arbitrator will be selected because of her or his agreement to provide an award within a short timeframe. This is one of the attractions to arbitration. There are no time limits upon family law court judges to furnish decisions whereas an arbitrator is unable to be paid for the arbitration until the award is handed down. An arbitrator who does not stick to her or his agreement about providing an award in a timely manner can expect to receive little work as an arbitrator ! (see sect. 10N(1) and reg. s67(2)(d)).

What Happens Afterwards

Once the arbitration has been conducted the arbitrator is then required to hand down his or her award. The award must be in writing and contain a concise statement setting out:

  • the reasons for making the award; and
  • findings of fact in the matter, referring to the evidence on which the findings are based.

See reg 67P.

A either party may register the award pursuant to s13H by application in accordance with Form 8 of the Family Law Regulations 1984 (Cth), see reg. 67Q.

Legal Status of the Award

Pursuant to sect. 13H(2) an award that is registered pursuant to sect. 13H has effect as if it were a decree made by that court. Enforcement proceedings can be initiated in the same way as enforcing property orders made by a court (reg. 67S).

Awards, are also subject to review in a similar way that orders of courts can be appealed. The grounds for review are contained in sect. 13J on a question of law. Questions of law are quite distinct from errors purely about a finding of fact. What are “questions of law” are numerous and indeed quite vexed as this publication on the Federal Court of Australia website would contend.

It is clear though that the failure to provide adequate reasons is an error of law. A simple review of a sample of appeals to the Full Court of the Family Court would reveal that a common ground of appeal is a failure to provide adequate reasons. A failure to afford a party procedural fairness would also be an error of law. In an arbitration, a failure to adhere to the parameters of the Arbitration Agreement would likely to be a failure to afford a party procedural fairness.

Do I Need a Lawyer

I would argue strongly against entering into an arbitration without the representation of a lawyer. However, where the arbitration is a simple or “on the papers” model of arbitration there is no reason why a party cannot agree with her or his lawyer to limit the scope of work to be conducted, ordinarily this would be the preparation of any affidavits and the written submission.

Expectations Of Lawyers

Whilst arbitrations are less formal and flexible than court hearings each arbitrator has differing approaches to what a lawyer is to do and how a lawyer is to behave before and after an arbitration. The following are my expectations;

  • At all times to conduct themselves with a degree of professionalism that is required under any relevantLegal Professions Act
  • Educate their clients about the nature of the dispute (i.e. the law)
  • Educate their clients about the nature of arbitration and the various procedural steps available
  • Participate enthusiastically in the preliminary arbitration meeting and have either exchanged proposals with their opposing colleague/s about the proposed matters to be included in the Arbitration Agreement or at least be ready to respond to questions about these matters with reasons why / why not a proposed step should / should not be taken (See a useful checklist of matters to be agreed upon)
  • Allow me to conduct the preliminary arbitration meeting and support me in designing the most appropriate, time and cost-effective method of arbitrating the dispute
  • Encourage your client to understand the desirability (both from a cost and time perspective but also from the perspective of simplifying the process) of refining the arbitration to only those issues that are critical to the determination of the dispute.
  • Provide your client with legal information and advice about their rights including the consensual nature or arbitration and their duty of full and frank disclosure.
  • Provide accurate estimates to me of the amount of material likely to be filed / lodged and the likely time frame for the arbitration hearing.
  • After the arbitration, to promptly attend to the registration of the award.
  • Maintain confidentiality of the arbitration.

 

That’s about it. I hope this article provides a useful summary of the concept of arbitration and please feel free to contact me at bruce@adrqueensland.com.au if you have queries about arbitration or would like to book a time for me to have a no obligation discussion with you and your opposing colleague about the desirability or suitability of my arbitration services for a particular matter.

You may also be interested in the services of Queensland Arbitration. In conjunction with Tracy-Lynne Geyson and Shanna Quinn we offer a panel arbitration model of arbitration that is both balanced, cost effective and timely. See attached.  

Disclaimer

 


[1] Although splitting orders are made pursuant to Part VIIIB the relevant sections commence with the notion of the s79 order including an order in relation to superannuation interests the view is that splitting orders - if needed - must occur via a private arbitration.

[2] Proposed amendments the Family Law Rules that are effective 1 April 2016 will assist disclosure processes with subpoena and disclosure obligations being clearer in arbitrations

[3] Note however that there is no reason why the arbitration – with agreement – cannot be via telephone or not in the presence of the other party which make arbitration potentially more appropriate