In most cases, the parties will agree to approach our office jointly by email, with all parties copied into the correspondence.

You can agree to privately refer your matter to Arbitration.

You can also agree to a court ordered referral to Arbitration. A court ordered Arbitration is commenced by filing an Application for Arbitration in your existing court proceedings, with a financial statement (and if the financial statement will not discharge your duty of disclosure, an affidavit setting out any further relevant material).

It is our policy that all correspondence between the Arbitrator’s office and the parties can and will be provided to all parties in an Arbitration. Our office will not engage in unilateral communication with one party about the matter. There may be on very rare occasions a reasonable exception, such as if a person’s internet connection drops out during a conference, the Arbitrator may telephone that person only to check if they are able to log back in.

After the initial contact is made by all parties, dates will be provided to book a Preliminary Conference.

All parties to an arbitration have a duty to give full and frank disclosure of all information relevant to the arbitration in a timely manner.

The Practice Direction for Arbitration states at paragraph 2.2 that prior to the preliminary conference, each party must serve on the other party:

1. A Financial Statement or such other equivalent document setting out the parties respective financial circumstances; and
2. All documents in sub rule 6.06(8) and (9) as applicable under the Family Law Rules

The disclosure procedures in Rule 6.2 of the Family Law Rules apply unless otherwise agreed.

The preliminary conference is where the parties, lawyers and Arbitrator agree on how the matter will be procedurally managed. At the conclusion of the Preliminary Conference, the Arbitrator will prepare an Arbitration Agreement including an Arbitration Plan for the parties to consider.

The Preliminary Conference will include discussions about:

1. What are the issues?

You will be asked to outline the issues in dispute.

A matter referred from a Court under Section 13E of the Family Law Act allows the Arbitrator to deal with property and maintenance issues, but the Arbitrator cannot direct splitting of superannuation or deal with matters related to binding financial agreements. A matter referred privately under Section 10L allows the mediator to deal with property including superannuation splitting, maintenance, binding financial agreements and Section 106A issues related to execution of instruments.

2. What type of Arbitration will be suitable?

• Arbitration can be conducted ‘on the papers’.

This is suitable if the parties largely agree on the facts, but can’t agree on how the assets are to be divided. Each party agrees to submit their evidence and their written submissions to the Arbitrator who will then read the papers and write an Award. The parties do not have to appear at an Arbitration hearing.

A good example of something suitable for Arbitration on the papers is where the parties agree that their contributions to the relationship were equal except for one party receiving an inheritance of $100,000 about 3 years ago. The parties cannot decide on how much ‘credit’ should be given for that contribution. The parties agree on the amount of inheritance, who received it, when it came into the relationship and how it was spent. If the only issue is how that inheritance affects the outcome, you could ask the Arbitrator to deal with the matter on the papers.

• Arbitration can be conducted on the papers but with submissions

This process is similar to above, but instead of the Arbitrator only reading the papers, after the evidence is filed, the parties (or their legal representatives) appear before the Arbitrator to make submissions about why the Arbitrator should award the outcome they seek. This allows the Arbitrator to ask clarifying questions of the parties. The parties do not give evidence in a witness box.

• Arbitration can be conducted as a hearing

An Arbitrator can determine a matter with a final hearing process almost identical to what is seen in traditional court room litigation. This would involve the parties submitting their affidavit evidence to the Arbitrator, parties and witnesses being called for cross-examination on the day of hearing, and at the end of the hearing the parties (or their legal representatives) can make submissions about the evidence.

• Arbitration can determine all issues in dispute or limited issues

Any of the above processes can be used to resolve all issues in dispute between the parties, or limited issues between the parties.

3. What procedural steps are needed before the Arbitration can proceed?

The parties will be asked to agree on a procedural timetable for filing evidence and if relevant, attending the Arbitration. This timetable can also take into account issues such as whether either party needs time to issue subpoenas.

4. When and how will the Arbitration take place?

In most cases, the date for Arbitration will be booked at the Preliminary Conference. However, in some cases a further preliminary conference may be necessary before the matter is ready for Arbitration.

The parties will decide if their arbitration will be in person or by video conference. The preliminary conference can also address any other issues that will affect the progress of the matter, such as if you have any safety concerns about attending.

If needed, a party can seek orders to facilitate the effective conduct of an arbitration. This is done by filing an Application in an Arbitration if a court ordered arbitration, or an Application relating to relevant property or financial arbitration if a privately referred arbitration. With your Application, you file an affidavit containing evidence that supports the orders you seek. Parties may, for example, seek orders related to discovery or leave to issue a subpoena.

The Arbitration will be conducted in the form as agreed on the dates for Arbitration that were allocated.

When the parties provide their evidence to the Arbitrator, we prefer to use Dropbox for large files but will accept any method (email, OneDrive etc) that results in the parties and Arbitrator receiving copies of all documents.

We audio record all our arbitrations and will seek the consent of the parties to record. If any party later asks for a transcript, they will be provided with a dropbox link to the audio recording. The parties are then responsible for the costs of production of any transcript.

After all the papers have been provided or after the final day of hearing, the Arbitrator will prepare their Award. The Award must outline the Arbitrator’s reasons for making the Award, their findings of fact and the evidence on which their findings are based.

Our standard agreement is that we will provide an Award within 28 days of the last hearing date.

Any party can apply to register the Award with the court once it is released.

There are ways to review an Arbitration Award and if a party is dissatisfied with an Award, we recommend they seek legal advice.