What is the Alternative Courtroom?
It is a better way - a way to separate sensibly.
• Property issues can be resolved quickly by leading family lawyers who act as arbitrators at a modest fixed price – a fraction of what it costs to go to court. The decision is then registered with the Court and is as binding as a court order.
• Parties can choose their own arbitrator.
• Cases can be resolved within weeks.
• The process can be adapted to meet the needs of the case.
• Hearings can be held at a fixed time and place, or, if everyone agrees, a hearing could take place by phone or video-conference.
• Arrangements for a hearing can be made to suit everyone concerned.
Family law arbitration is different from mediation, because while mediation is a way to structure negotiations between the parties, arbitration offers a final decision - just like a court.
The Family Court supports the use of arbitration to resolve property matters – it can save the cost and stress of waiting up to two years for a trial.
Recent Articles and Conference Papers
Family Property Arbitration: Exploring the New Potential
Prof. Patrick Parkinson AM, October 2017
Arbitrations in Family Property Law
Justice Robert McClelland, April 2017
Arbitrations in Family Law
Justice Gary Watts, November 2016
Family law arbitration in the news
Arbitration could relieve busy family courts: Chief Justice
The Age, July 30th 2016, p. 8 & Sydney Morning Herald
The future of the Family Court
The Age, July 30th 2016
In September 2017, a new international arbitration scheme was launched, which is closely associated with The Alternative Courtroom.
The launch of international family law arbitration
Peter Magee, Arbitrate family law cases to save time, money
The Australian, November 24 2017
Cases
Mowbray and Sampson was heard in February 2017 only about 6 weeks (excluding public holidays) after the details of the arbitration were settled by the Federal Circuit Court. The decision was delivered within just over two weeks of the hearing. The case gave rise to some legal issues, which are described here.
Mayfield and Horne was heard in September 2017, with the decision being handed down within five days of the hearing. It raised issues concerning the assessment of contributions in a case where the couple have come together later in life, had no children together and kept their finances separate. The decision is summarised here.
Arran and Arran was heard in June 2018, with the decision being handed down within a week. It raised issues concerning addbacks, gambling losses, and contributions by other family members. . The decision is summarised here.
Quicker
The normal timetable for The Alternative Courtroom provides for the hearing to be scheduled within 8 weeks and a decision given within a week or two afterwards.
Arbitration can also be used to deal with interim issues swiftly.
It can take two years in some parts of Australia to get to a trial in court to resolve a family law dispute.
Simpler
Parties can agree to allow the arbitrator to deal with the case without needing to apply all the rules of evidence.
Where there is no need for oral evidence and cross-examination, a decision can be made after a brief hearing for submissions and clarification of issues.
Cheaper
Cases can be dealt with quickly, with the aid of online processes. Lawyers can still present their client's case, but time and money is not expended in procedural hearings at court, or vying with other litigants to get trial dates.
The Process
The Alternative Courtroom (TAC) takes cases prepared by lawyers, and can conduct hearings in NSW, Victoria or the ACT, or anywhere in the country through video or phone conference.
Step 1: Each lawyer fills in a brief questionnaire online to explain about the issues in the case and what length of hearing will be needed.
Step 2: An arbitrator is either agreed by the parties or assigned by TAC. Parties need to sign an agreement for that person to arbitrate and pay an initial fee prior to the commencement of the arbitration.
Step 3: The lawyers upload the relevant documents to the website (e.g. financial statement and balance sheet).
Step 4: The arbitrator conducts a preliminary conference by telephone to determine the process and to identify any further evidence that needs to be provided.
Step 5: The arbitrator conducts a hearing in person, by video-conference or telephone. The hearing will be recorded. The hearings will be in University moot court rooms or other suitable premises in Sydney, Canberra or Melbourne.
Step 6: The arbitrator gives a written decision, ordinarily within two weeks of the hearing.
Step 7: A party registers the decision in the Family Court or Federal Circuit Court.
Step 8: 28 days later, it takes effect as if it were a decree of the Court.
Why is there a need to have an alternative to the family law courts?
The courts give priority to children’s cases, particularly those involving safety issues. If a property case cannot be resolved by agreement, eventually the court will hear it, but there may be a long wait.
Arbitration provides another way of resolving these disputes quickly and more cheaply for separating couples who cannot agree between themselves.
Why is family law arbitration so much cheaper than going to court?
- Letters go backwards and forwards between solicitors trying to negotiate a settlement.
- Financial information has to be updated, sometimes including valuations.
- There are procedural hearings to attend.
- People may need to take time off work to attend court.
Arbitration involves an up-front cost, but the dispute is resolved at a fraction of the cost of a court hearing.
Do I need a lawyer?
Can I choose my own arbitrator?
I am already in court – isn’t it better to continue the litigation?
You may have already invested a lot of money in getting your case ready for court. That means your case is likely to be ready for arbitration. In deciding whether to keep going with litigation, ask your lawyer the following questions:
1. How long is it likely to be before we get to trial?
2. On those dates, will ours be the only case listed?
3. What fees will be payable to the court for the hearing?
4. What is my legal representation at the trial likely to cost?
5. What other costs are likely to be incurred between now and then for correspondence with the other side, trial preparation and consultations?
6. Does the judge have a lot of experience in dealing with family property issues?
7. How long am I likely to wait for a judgment after the trial has concluded?
8. If one of us appeals, how much is the appeal likely to cost?
9. How long will it be before the appeal court hears the matter?
10. How long am I likely to wait for a judgment after the appeal hearing has concluded?
11. If the appeal is allowed, will the appeal court decide the case itself or send it back to a trial judge to hear the case again?
12. If the case has to be heard again, go back to question one.
What about very complex cases?
The Alternative Courtroom’s fixed price service is not suitable for cases which may take more than three days of hearing time. The Alternative Courtroom can arrange an arbitration with one of our arbitrators at a price to be determined based upon the time and complexity involved.
Is it confidential?
Yes. The process is private and confidential. This contrasts with the courts where parties must appear in a public forum and judgments are published (under anonymised names). The arbitration decision and communications with the arbitrator may however, be admissible in court if there are any subsequent legal proceedings.
How is arbitration different from mediation?
The Alternative Courtroom strongly encourages people to go to mediation. However, sometimes people just need an answer. They have received very different advice from their lawyers (that is quite common in family property cases) or for other reasons they simply cannot reach a compromise.
With arbitration, you get a definite answer – just as you would from a judge. Once registered in Court, the arbitration decision takes effect as if it were a decree of the Court. The arbitrator may well explore options for settlement, but he or she is not a mediator. At the end of the process if you can’t agree, you will get a decision with an explanation of reasons for that decision.
What if I don’t like the decision?
The decision is only binding upon you if one of you registers it with the Court. The Alternative Courtroom will register the decision for you, but it needs one of you to sign the application. If neither of you like the decision, then you don’t have to register it. However, you ought to get your own legal advice about what should happen in this situation. It is worth remembering that a decision which neither side likes is very often a fair decision.
Why hasn’t this been done before?
There has been potential for arbitration in property cases for many years. Legal Aid in Queensland has long had a successful and low cost arbitration program available to its clients. However, for many years the Family Court did not create Rules of Court to facilitate arbitration. This has now changed. In April 2016, new Rules of Court came into effect to support the arbitration process.