Is my matter suitable

Most financial disputes. Not all situations.

Arbitration works for most financial disputes. It cannot be used for parenting, and it cannot be used at all unless both of you agree to it.

If your dispute is about property, superannuation, debts or spousal maintenance, and the other party is willing, it can be arbitrated. Whether it is the right choice for you depends on the nature of your dispute.

What can be arbitrated

An arbitrator can decide how property and financial resources are divided, spousal maintenance, and other financial questions between separating couples.

An arbitrator cannot decide anything about children. Parenting arrangements and child support are for agreement between the parents, or for the court.

If your matter involves both, the financial issues can still be arbitrated. The two run separately, and the financial dispute does not have to wait.

Find out more about arbitration

Both of you have to agree

This is the point most matters turn on. Arbitration is not something one person can start. Both parties have to agree to it, and both have to agree on who the arbitrator will be.

If the other party will not agree, arbitration is not available and the matter stays with the court.

You do not have to agree about the dispute itself. You only have to agree on how it will be decided.

You will each need legal advice before the arbitration agreement is signed. This is a requirement. The agreement itself has to contain a statement that you were given advice on it, signed by the lawyer who gave you the advice.

You do not need a lawyer for the whole arbitration. Parties can act for themselves throughout and get advice on the agreement alone. But you will need a lawyer willing to give that advice and sign. An arbitration cannot proceed until each of you has done so. You cannot use the same lawyer as the other party.

Where it makes the most difference

Almost any financial matter can be arbitrated. These are the ones where it makes the most difference.

The dispute is worth less than the wait

Legal fees and years of uncertainty can add up to more than the amount actually in dispute.

You are both ready and the court is not

The preparation is done, and what you are waiting for is a date.

Your hearing date has been lost

An arbitration date is fixed by agreement and does not compete with a court list.

Everything is agreed except one thing

A valuation, or how a particular contribution should be treated. A single question like this can often be decided on the documents alone, without a hearing.

You agree on most of the facts but not the outcome

The hearing can be shorter and narrower than its court equivalent.

You need it to fit around you

Online, in a regional area, or outside ordinary court hours.

What you are giving up

Two things, and both should be understood before you agree rather than after.

Cost

You are paying for the decision-maker. A court hearing does not carry a fee for the judge. In an arbitration, the parties pay for the arbitrator. Those costs are shared equally between you, unless you both agree in writing to something different.

While this is an additional cost to the traditional court process, arbitrations can still be cheaper because the timetable is streamlined and the hearing is fixed.

Finality

The decision is final. Once an award is registered, a court can review it only on a question of law. It can also set an award aside, but only in four situations: where the award was obtained by fraud, including the non-disclosure of something material; where it is void, voidable or unenforceable; where circumstances have changed so that it cannot be carried out; or where the arbitration was affected by bias or a lack of procedural fairness.

You cannot ask a court to decide the matter again simply because you think the arbitrator reached the wrong result.

When arbitration is not the right process

Arbitration depends on both people being able to take part properly. It is not suitable where:

one party would not be able to meaningfully or safely participate
one party does not understand what arbitration involves or what it may lead to
one party cannot give proper instructions to a lawyer, or cannot satisfactorily appear at a hearing
the rights of someone else (a company, a trust, a family member, a creditor) are in dispute and cannot be dealt with
the dispute is about children

If any of this applies, say so early. An arbitrator has to stop an arbitration where a party cannot properly take part, and it is better to know before anyone has spent money.

If you are in immediate danger, contact police on 000. Confidential support is available from 1800RESPECT on 1800 737 732.

A note on the quick exit. The button at the top of this page will take you to another site immediately. It does not clear your browsing history. If you need to browse without leaving a record on your device, use a private or incognito window, or a device the other party cannot access.

What if the other party stops taking part

An arbitrator can suspend an arbitration where a party does not comply with a direction. If the delay runs on, and the arbitration was ordered by a court, the arbitrator must refer the matter back to the court.

Arbitration is not a way for one party to stall. But it does depend on both parties continuing to take part, and if one of them will not, the matter may end up back in the court list.

There may be costs consequences to the party who stops participating.

If you think it might suit

If you have a lawyer, talk to them. If you do not, you can still arbitrate — but you will need advice on the arbitration agreement before you sign it. That is a requirement of the Regulations.

If you have questions about availability, fees, or process, please submit an enquiry. An arbitrator cannot discuss the facts or merits of a matter with one party alone.

Enquire