Arbitration

Amanda offers a service as a Nationally Accredited Arbitrator. Arbitration is a process in which parties to a dispute present arguments and evidence to the Arbitrator who makes a final decision (or determination). Arbitration is an alternative to the judicial process in property and financial matters where the parties require a quick and efficient resolution to the dispute.

Benefits of Arbitration

  • Arbitration is private and subject to the parties’ agreement is confidential.

  • Arbitration is a more formal process than Mediation however it is less formal than the Court process and avoids lengthy Court delays

  • Arbitration allows parties to agree to opt out of the Court process and engage a private Independent Arbitrator to make a legally binding decision

  • Arbitration can resolve a range of matters in a timely manner for example an Arbitrator may be engaged to determine a single evidentiary issue, admissibility of evidence, make a determination about expert evidence and/or determine part or the whole of the dispute and make an arbitral award.

  • Parties agree who is appointed as Independent Arbitrator whereas there is no control over the judicial officer allocated to determine the dispute

  • It is up to the parties to decide what issues in dispute the Arbitrator should determine

  • Arbitration is an efficient process for determining interlocutory disputes which may prove to be an impediment to resolving a dispute on a final basis

  • Parties are usually assisted in the Arbitration process by experienced lawyers with extensive relevant experience

Why Arbitrate?

  • Opting for Arbitration where there is a financial dispute between parties is likely to be an efficient, quicker process than awaiting an allocation of a hearing date before a court and less expensive.

  • Parties may undertake private Arbitration where there is a dispute in property and/or financial matters including financial disputes between married and/or de facto partners who are in a relationship, separated or divorced, parties to a financial agreement under Part VIIIAB of the Family Law Act or any matter or part of a matter arising in a proceeding or a dispute about a matter with respect to which the proceedings could be instituted under the Family Law Act (see section 10L (2) (b) of the FLA).

  • In the alternative the Court (FCFCoA) may make an order referring a matter to Arbitration where there is a property or financial dispute between married and/or de facto partners who are in a relationship, separated or divorced or any part of a proceeding or any matter arising in a proceeding or a dispute about a matter with respect to which the proceedings could be instituted where all parties consent but excluding parties to a Part VIIIAB financial agreement  (see section 13E of the FLA) A party to an Award made under section 13E may register the Award.

  • An Award registered under section 13E (1) has effect as if it were a decree made by the Court. A party to a registered Award may apply for a review of the Award on a question of law.

Arbitration process

  1. Parties and/or their lawyers participate in a preliminary (or directions) hearing where safety issues are considered and the preferred approach to the Arbitration process is discussed. The preliminary hearing occurs remotely. The parties are required to reach agreement that the Independent Arbitrator has authority to make a legally binding decision. The issues in dispute are discussed and identified and each party advises the evidence they intend to adduce and rely upon and how that evidence supports their claim.  A timetable for exchanging evidence is set and a date and venue set for the Arbitration process at the convenience of the parties and/or their lawyers.

  2. Prior to the Arbitration the parties will be required to submit an outline of their case setting out the facts in dispute, the parties contentions and a list of authorities relied on with respect to questions of law.

  3. Arbitration occurs in person at a date and time agreed upon at the nominated venue. Where both parties agree Arbitration may be conducted remotely via Microsoft Teams subject to evidentiary issues being facilitated

  4. Arbitration is usually formal and structured with the applicant first presenting evidence in support of their case and thereafter the respondent. There may be an opportunity for a party to call a witness if that evidence is relevant and notice is given to the other party.

  5. The evidence relied on by each party is marked as an exhibit. At the conclusion of the evidence, argument and addresses by each party or their lawyers, the Arbitrator will make a legally binding decision based on the evidence and the applicable law and make an Arbitral Award. As a former Judge Amanda is skilled in assisting the parties through the Arbitration process so that a determination can be made in a timely manner including drafting an Award.

  6. An Arbitral Award may be registered by a party and may be reviewed by a Court on a question of law.

If you need help

Amanda can be contacted on 0406792242, via the contact form or emailing atonkin@qldbar.asn.au.