Deborah Hart: Arbitration helping to solve thorny domestic issues

Mediation doesn't necessarily solve every issue facing a separating couple. Photo / Thinkstock

Opinion

Family law reform is on a roll. Not so long ago separating couples had relatively few options for concluding their affairs in the most satisfactory way - and the process was often made all the more thorny because of it.

No more. Family law arbitration, the latest conflict-resolution tool for people seeking resolutions for difficult domestic circumstances, marks another milestone in what has been described as a quiet revolution in the way we manage and resolve the most sensitive conflicts.

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. We're used to hearing about arbitration of industrial conflicts and international stoushes. For a long time, though, there has been a widespread belief among lawyers that it can't be used in family law disputes.

That old assumption has been discarded in the light of the far-reaching reforms the government has made to the Family Court system.

Most notable in this process has been the introduction of a family dispute resolution scheme that has seen professional mediation acquire far more of a central role in the process.

But mediation doesn't necessarily solve every issue facing a separating couple. Until now that's usually meant that a judge has had to make the final call.

Family arbitration offers an alternative. Essentially it's an entirely confidential way of reaching a decision about your finances or your property if your relationship has come to an end, but without judicial intercession.

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.

Because both partners will have agreed to stick to the decision, neither of them can back out without the other's agreement.

Thomas Stipanowich, a professor of law at Pepperdine University, in California, who has been in Auckland as a Law Foundation visiting fellow, believes the growing international popularity of family law arbitration reflects to some degree frustration with costs, delays, risks and limitations.

This has, he says, "prompted growing attention to informal methods aimed at early, efficient resolution of disputes that are client-controlled, co-operative, relational, informal, interest-based, flexible, early, expeditious and efficient".

Deborah Hart is executive director of the Arbitrators and Mediators Institute of New Zealand.