The Chief Justice of the Family Court has just suggested people to go to arbitration as a way of staying out of Court.

I am a Family Law Arbitrator, and I vote “Maybe”.

What is Arbitration?

Arbitration involves a trained person listening to a dispute and making a legally binding decision. It is attractive because it is faster and cheaper than going to Court, and the documents and presentation of evidence can be less formal. But in the end, arbitration is only a short hand version of a court case.

The government and the courts want you to stay away to save them money. Arbitration is one way you can oblige. The budget of the family courts is enormous, and I am the first to say (and have done so many times before) there is no reason for the Australian taxpayer to support litigation between spouses who can afford the cost of their own private arguments. If people had to pay the true cost of their litigation, there would be very little of it. So is that a “Yes” vote from me?

Well, no, because we need to talk about more than the financial cost of divorce settlements.

What about looking at the real reason people go to court?  That is rarely about money and almost always about emotion, personality, history and tempting legal advice.

Why is there so little discussion about the role of psychologists and counsellors in helping people to understand what is going on for themselves and their spouse, and so enable them to settle their disputes?

Any dispute resolution method that ignores the fact that separation is a deep emotional crisis, and fails to include social science expertise, is basically floored in my opinion. Court cases, arbitration, lawyer-to-lawyer negotiation and most mediation fall in to this category.

The best way I know to care for people who need family law advice and settlement, is to embed psychological and counselling work in their discussions. Collaborative teams do this all the time. Over and over, it is the work of the psychologist/counsellor on the team that allows people to settle. The psychologist helps with changing old patterns of communication, making sure that each person is “OK”, helping both people to see the point of view of the other, and fostering break through moments.

So why even a “Maybe” to arbitration?

Sometimes a court-style approach is the only one that will work. It can be necessary to go to court to get some people “to the table”, if your spouse has issued court proceedings, and of course and in cases of safety and urgency. If you find yourself in the court system, and there is a chance to opt out to arbitration, that is well worth considering.

But arbitration is no Golden Child. It is a less expensive and time-consuming means to the same end as the court will take you. Your emotional health and your wallet will probably be in better shape at the end of arbitration than  at the end of a court case, but you can do much better at much less cost with the real Golden Child of dispute resolution: Interdisciplinary Collaboration.

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