Arbitration – no different to private health insurance

I started my career as a Family Lawyer doing agency matters in the Family Court and the Federal Magistrates Court as it then was. That gave me a good grounding in how the Court system could be used effectively to change the power differential between separating parties. Those were times where specialist practitioners with Family Law experience were appointed as Judges or Federal Magistrates and appropriate resources were applied to the Family Law system.

Since those times, statistics have increased in relation to separating parties, jurisdiction has expanded in the now Federal Circuit Court and the Family Court extending to de facto property settlement as well as having to deal with areas outside of Family Law.

This has culminated in unbearable pressure being placed on our judicial officers to increase their workload and manage their ever-expanding lists without further resources being devoted to them.

It has reached the stage where, when somebody files an interim application, it is unlikely that it will be determined by the Court on the date assigned for its hearing. This has significant flow-on effects when you consider parties may adopt a particular strategy knowing they will not be scrutinised by the Court for a significant time, sometimes not for five (5) months. In parenting matters where we are talking about the best interests of children, you see scenarios developing where children are not having the benefit of having a relationship with each of their parents or their relationship is interrupted with one parent.

We are seeing regular attacks on our judicial officers in the media in relation to their delay in writing judgments. What is not mentioned in that criticism is the number of matters those same judges are dealing with on a day by day basis.

In the latter half of this year, it has not been an unusual occurrence to turn up to the Federal Circuit Court with Barrister and Solicitor having done all of the necessary preparation, not to mention the emotional investment for the clients, only to be told that there is no judge available to deal with their matter. Not only are they told that, but they are further told that it is not known when a date will be available for their matter to be heard in the future and that they are to wait and hear from the Court. As recently as last week, three matters were listed for trial on a particular day and the three matters were all told that there was no judge available. One matter resolved as the legal representatives were able to use the time to negotiate a settlement, but the other two are still waiting for trial. In the last two months, over one period of two weeks, I am told, there was up to thirteen matters turned away with the same explanation, that there was no judge available.

As legal practitioners with a duty to our clients, the time has come to ensure our clients’ are aware of other alternatives available to resolve disputes. Whilst mediation has been embraced in Queensland, arbitration is still a rarity. Why?

Logically arbitration has many benefits:

Efficiency – decision received and process completed within two months
Certainty of who is the decision maker- you contract with your selected arbitrator
More economical – whilst you have the cost of the arbitrator the speed within which the process is finalised significantly reduces legal fees.
Accountability – the arbitrator contracts to provide their award within a time frame and if they fail to do so, their right to payment can be in jeopardy.
There is a small group of practitioners on the Sunshine Coast, in Queensland who have been successful in changing the way their local legal profession engages in dispute resolution. This charge is lead by barrister Bruce Thiele who is actively promoting the benefits of arbitration and acting as an arbitrator.

There are practitioners on the Sunshine Coast like Sue Stannett of Freedom Law who have represented clients in up to six arbitrations.

The time has come for Queensland to follow and ensure that our clients’ are offered the benefit of private dispute resolution such as arbitration. If you think of the legal industry like the health industry, why wouldn’t our clients who make the decision to privately insure their health not make the same decision about resolving their legal disputes.

This originally appeared on LinkedIn:

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