The best way of resolving a dispute is by agreement. You may be able to achieve this through negotiations with the other party, with or without the help of a mediator.

Unfortunately agreement is not always possible. Some parties refuse to supply the information or documents you need before you could agree. Some need a judge or arbitrator to decide the case for them. Issuing proceedings usually helps the parties to come to an agreement.  Proceedings provide a framework in which to exchange information and documents, identify the issues, and evaluate the likely result.

In cases where the issue of proceedings would be helpful, the choice lies between court and arbitration.

The main advantage of court is that you do not need the other party’s agreement to that course. Arbitration is possible only if both parties agree to it.

In many cases both parties do agree to arbitration for these reasons:

  • Speed and finality (court can take years; arbitration months).
  • Confidentiality (court judgments are available to the public; arbitration awards are confidential)
  • Choice of decision-maker (the court chooses the judge; you choose the arbitrator)
  • Ongoing access to the same decision-maker (courts require the filing of formal documents each time something is required. Over the life of the proceedings the file tends to be passed around many judges. There will be only one arbitrator throughout and you can communicate with him or her direct by email copied to the other side).
  • Efficient disclosure arrangements (the disclosure powers of courts are time-consuming and formal; arbitrators can move quickly and informally)
  • Tailoring of procedure to the particular dispute (the court’s procedures are laid down in rules; arbitrators adopt whatever steps the particular parties need)
  • A result that cannot be appealed (Family Court judgments are open to appeals to the High Court and, if the Court gives leave, to the Court of Appeal and/or Supreme Court; there is no appeal from an arbitration award unless the parties provide for it in advance, and even then only on narrow legal grounds).

For further details on the advantages of arbitration see click here [New way of resolving relationship property disputes (2014) 845 LawTalk 28] and click here [Relationship property arbitrations: a turn-off for reticent tycoons? (8 August 2014) Newlaw 11].