In India, where the legal system is plagued with backlog and delayed justice, the implementation of court-ordered arbitration in family law, to a limited nature of disputes, could be a viable solution.
Family law disputes can be emotionally draining, expensive and time-consuming. This is why the Family Court of Australia and the Federal Circuit Court of Australia have implemented changes to require separating couples to undertake “genuine steps” to resolve their issues before issuing court proceedings. One such step is Alternative Dispute Resolution (ADR), and arbitration is becoming an increasingly popular option due to its ability to deliver simplicity and timely resolutions to financial matters. It is not applicable to parenting matters or child support.
Compared to a trial, arbitration is a straightforward, low-cost, and fast process that achieves the same result, namely, a court order that can be enforced by law. Arbitration can be used to determine a single issue or a range of issues, whether on a final or temporary basis. For example, it can be used to determine a property division between a separated couple, whether spousal maintenance should be paid to one party and how much, or to determine disputes about the value of property and assets and superannuation splitting.
At the beginning of the process, an arbitrator is appointed or chosen by the parties. This person is usually a retired family law judge or experienced family lawyer trained as an arbitrator. Depending on the extent of the dispute, the arbitration can proceed without needing a hearing or either party giving evidence. The arbitrator will review the available documentation, which should include agreed facts, and make a decision “on the papers.” This option is best suited to matters where most things are agreed (valuations of property and assets), but someone needs to decide who pays and what the amount will be. This is a far cheaper option because of the significant amount of time saved on preparation and negotiation.
Arbitration can also occur “on the papers” with the addition of oral submissions. This means that the lawyer for each party will present a proposal for finalizing the matter. The arbitrator will consider the proposals and other documentation and determine how to resolve the dispute.
Lastly, if required, there can be a full hearing where parties are cross-examined, and submissions are made at the end of the evidence. While this is similar to a trial, parties do not have to worry about the long delays associated with going to court. This means a decision can be made far quicker, and both parties can begin to move on with their lives.
In conclusion, arbitration is becoming an increasingly popular option in family law due to its simplicity, timeliness, and cost-effectiveness. While it is not applicable to parenting matters or child support, it can be used to resolve financial disputes in a range of situations. In countries like India, where the court system is overburdened, the implementation of court-ordered arbitration could help alleviate the backlog of cases and provide timely justice to those in need.