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Mediation Arbitration Expert Appraisal

Arbitration

How do I know when Arbitration might assist?

Arbitration is used where parties wish to choose their own decision maker and to keep the proceedings confidential.

Arbitration is most commonly used in commercial or construction matters.

It is also becoming popular in family law matters and both the Family Law Act (Commonwealth) and the Family Court Act (State – WA) contain provisions for arbitration and qualifications for arbitrators. Parties have the advantage of choosing an expert and the way the arbitration will proceed. Litigation in court lacks this level of flexibility.

What do Arbitrators do that is helpful?

Parties can decide whether the Arbitrator is to be bound by the formal rules of evidence applied in court and to that end may agree the Arbitrator may admit certain evidence that would not otherwise be admissible.

Decisions made by arbitrators may be more palatable or acceptable to both parties as both parties chose the Arbitrator who is to make the decision and the process by which the decision is reached.

What is the Arbitration process at PDRC?

Once a dispute has been assessed as being suitable for arbitration, the parties meet with the arbitrator and draw up an agreement setting out the terms of the arbitration.

These terms cover all aspects of the process including, dates, time and venue of the arbitration, the conduct of the matter (for example, whether parties are to give oral or documentary evidence, whether in-person or by letters and telephone, etc), legal representation, and costs.

Normally both parties share the cost of the arbitration.

The process will vary from matter to matter and from arbitrator to arbitrator. This is because the parties and the arbitrator draw up the terms of the arbitration agreement themselves in each case.

What about the cost of arbitration?

The cost of each arbitration will vary depending on the matter and on the particular arbitrator.

Each practitioner will have their own fee schedule and the rates are usually hourly or daily.

Details as to costs will be clearly outlined in writing before the process is commenced so that you are able to make an informed decision about whether to proceed.

When can arbitration be used?

Arbitration is a private contract made between the parties in dispute and the arbitrator. Consequently arbitration may be used at any time prior to the commencement of proceedings in court.

Once litigation proceedings commence there are circumstances where courts may require that they consent to the proceedings being referred to arbitration. See for example Regulation 67C, 67D of the Family Law Regulations.

Arbitration may be employed in all the same types of cases that are commonly referred to litigation with a major difference that the parties choose their own decision maker and certain conditions of the process.

What are the benefits of arbitration?

May be less time consuming than litigation;
Often less costly than litigation
The parties choose their own decision maker as well as many other aspects of the way the dispute is heard;
The arbitral award may be registered in court for increased certainty and security for the parties.

The information you obtain at this site is not, nor is it intended to be, legal advice.
You should consult a lawyer for individual advice regarding your own situation.