The big Arbitration debate and why it’s just one (not especially helpful) idea

01/11/2017
Change Makers in The Legal System
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This article is written by Marguerite Picard
Arbitrator/ Mediator/ Collaborative Practitioner/ Change maker/Peace maker/lawyer who knows its past time to change the practice of law

The Family Law Act review is beginning; let’s not have it derailed by the idea that arbitration is the answer to the whole great muddle.

I’m hearing a lot about arbitration as “the answer” in all the talk about changes to the family courts and family law system. It seems to me that if ever there was a supposedly simple solution to a complex problem, arbitration-as-panacea, is it.

The essential problem with the Family Court is that it is at the pointy end of an adversarial system, and the truth is that arbitration is at the same pointy end.

In common with the courts, arbitration is the product of adversarial thought and action, it imposes decisions on people, and it is based on evidence, forensic evidence and legal argument.

That should be enough to slow this idea in its tracks, but now that the Attorney General has uttered its name, and other lawyers are loudly promoting it, that won’t be the case.

What’s the difference between an arbitration hearing and a court hearing you may ask? Arbitration is cheaper for government. Way cheaper, because the user pays. It’s possibly cheaper for the average customer, but that is by no means certain. It should be faster than the queue for the court.

So what’s wrong with that? There is nothing inherently wrong with arbitration or any adversarial process, if that is your best option. Except in the rarest of cases though, no adversarial process is going to be the best option for separating families.

It is not a natural progression for separating families to move towards a legal process. Rather, that move is a failure of a more rational approach that says “lets address what’s really hurting us and what’s keeping us awake at night”. The law might “own” separation and divorce, but that doesn’t mean the title can’t pass back to the true owners, being the people in pain, and the professionals who are trained to ease that pain.

Handing your life over to a judge or handing your life over to an arbitrator are one and the same in the end.

If we are looking for real change, new approaches, then arbitration isn’t it; it’s more of the same tinkering around the edges that’s been going on for forty years.
I don’t think we will have real change until we are prepared to take family law away from the lawyers, and put it back into the hands of separating couples, and ask what it is they want help with.

In my experience, the fears separating couples need help with are about:

  • their children’s wellbeing and relationships with their mum and dad;
  • child support;
  • housing;
  • retirement;
  • fairness;
  • business operation and succession;
  • loss of the dream.

Amongst these fears there will be arguments about what there is to share, what’s mine and what’s yours, who’s to blame, who’s deserving, who should be punished, who’s behaved well or badly and when and how, who’s the better parent, who’s chipped in the most money or effort along the way. All the usual stuff of relationship breakdown really.

Sometimes these arguments will best be settled by introducing “law”, when it is as good as any other option, or everyone has run out of clever ideas.

More often than not though, these arguments will only be truly resolved when somebody gets to the heart of the matter.

Judges and Arbitrators are not there to get to the heart of anything. They are there to make decisions when all else fails, based on the information and arguments they are presented with, as long as they are the very same arguments they hear every day, because they are about the law.

Arbitration is a legal process. Let’s not forget that when we talk about this opportunity to turn family separation into a de-legalised zone, where emotion, communication, financial planning and creativity rule. Oh, that sounds just like Collaborative Practice.

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