Family arbitration new way to resolution

Deborah Hart
Deborah Hart
Coming soon to a domestic dispute near you: family arbitration. Deborah Hart give her views on what the ''new kid on the block'' of family law means.

It has been called the white knight of the tricky divorce and the newest kid on the judicial block - and if the metaphors are a little mixed, that's because commentators abroad are understandably excited about family law arbitration.

For the first time, New Zealanders seeking difficult resolutions in their own domestic circumstances will be able to choose the speed, expertise and confidentiality of family law arbitration for themselves.

Arbitration, of course, is an ancient form of dispute resolution, and already very well known.

Unlike mediation, which is a voluntary process, people seeking arbitration enter into an agreement under which they appoint a suitably qualified person to help produce a result that will bind them. Arbitration has a long history in certain areas - industrial disputes, for example.

For a long time there was a widespread belief among family lawyers that arbitration could not apply in family law disputes.

In recent years, however, that notion has faded, as more and more jurisdictions, most recently England and Wales, but also in Canada and the United States, recognise it as a highly useful tool in helping resolve some of the most sensitive disputes affecting separating couples.

What is family arbitration?

Essentially, it's a way of reaching a decision about your finances or your property if your relationship has come to an end.

It's an alternative to asking a judge to do it if you haven't been able to sort things out directly between yourselves or through another form of dispute resolution.

Like a judge, the arbitrator will make sure that all the relevant facts are gathered together.

The arbitrator will also gather evidence from you and your partner.

They will take into account your views on what you think should happen.

Then they give a ruling. It can be done face-to-face or it can be done with a bit of distance between the parties.

The couple chooses what suits them, just as they choose their own timetable, so they can control the speed of the resolution in a flexible kind of way.

At the start of the process both partners have agreed to stick to the award.

Then, once the arbitrator has been appointed, neither person can back out without the other's agreement.

And it's also particularly helpful in situations where people have agreed to a lot of things but find themselves stuck on one or two thorny issues.

It's generally quick - certainly faster than the traditional court process - cost-efficient and less emotionally demanding than some of the alternatives. It's also professional. Arbitration is not for everyone, of course.

Many couples are able to reach an early agreement on issues such as property. Others, despite the best will in the world, are not so fortunate.

They need some kind of division imposed on their situation, or aspects of their situation, but they naturally want this to be as relatively painless as possible.

Among the distinguished jurors supporting the new scheme as a way to achieve this is Robert Fisher QC, a legal practitioner in New Zealand for 24 years, from 1965 to 1989, and a past High Court judge for 15 years until 2004, who now works as an arbitrator and mediator.

By issuing arbitration proceedings, he points out, a couple is effectively hiring a neutral third party to manage the process of dividing property for them in an atmosphere that is comfortable, confidential and quick.

While family law arbitration is currently limited to the division of a couple's property, he predicts it will soon be extended to other forms of family dispute.

 - Deborah Hart is the executive director of the Arbitrators' and Mediators' Institute of New Zealand (AMINZ).

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