Arbitration: a viable option in the midst of COVID-19

The Courts dealing with family law matters are not immune to the impacts of COVID-19 and the challenges of balancing the health and safety of those involved in proceedings, and maintaining access to justice. To help minimise disruption to clients, the courts are proactively transitioning to digital alternatives and more recently formalised support for alternative dispute resolution by establishing the National Arbitration List.

The National Arbitration List presents a good opportunity for you to consider whether arbitration is right for you. With court delays now extending out to 2-3 years, there is a growing interest in alternative dispute resolution options, including arbitration. To help you understand a little more about arbitration we have prepared a list of the top ten things you need to know:

1. Arbitration is an option for property cases only, not for parenting.
2. You and your former partner/spouse need to consent to arbitrate. You can consent to arbitrate part or all of your property issues.
3. You and your former partner/spouse get to choose the arbitrator who will determine your case.
4. You and your former partner/spouse have the flexibility to nominate the time and place for the arbitration. This can be more private than a courtroom.
5. You can use video-conferencing facilities like Zoom and Microsoft Teams, helping you meet the current COVID-19 restrictions with social distancing.
6. You and your former partner/spouse will be able to agree the process for preparing your case for arbitration - potentially limiting the time taken for the arbitration and ultimately reducing your costs.
7. If your case is already before the Court, and you agree to be referred to arbitration, the Court’s role may be limited and procedural in nature.
8. If you decide to proceed with arbitration, the Court may assist by making directions similar to those made to prepare a case for a trial.
9. At the end of the arbitration, the arbitrator must, within 28 days, provide a decision (called an award) with reasons for their decision, so you can finalise your matter more quickly – you can then get on with your life rather than being delayed in the Court system for what could be a lengthy period.
10. The arbitration award can be registered with the Court. Once an award is registered, it has the effect of an Order made by the Court.

If you have any questions about whether arbitration is appropriate for your case, we invite you to contact our Family Law team.

We invite you also to have a look at our earlier article where we discuss the various options you have available to help you resolve your family law matter.

Please visit the websites of the Family Court or Federal Circuit Court if you would like more information about the courts’ response to COVID-19.