Mediation & ADR
7. Arbitration
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 19 Aug 2015
- Arbitration is a determinative process. This means that a decision can be imposed on the parties as a way to resolve a disagreement. It is similar to a judge making a decision in court except with less cost and less formality as the formal rules of evidence generally do not apply as strictly.
- People that are in a dispute may agree to take their case to an arbitrator and let them make a decision or determination about the issues in dispute. The arbitrator is independent and impartial. Their job is to consider the issues before it and make a decision. They are often an expert in the industry or field of the dispute.
- An arbitrator’s decision is called an ‘award.’ It is legally binding on the parties in the same way that a court order would be.
- Arbitration is used primarily in commercial matters and there are federal laws that regulate this area.
- The arbitration process:
- Both parties will decide to appoint an independent Arbitrator. This person will take on a role similar to a judge.
- You will each file a claim detailing what it is you are asking for.
- Often there is a preliminary conference which gives parties a chance to meet and narrow the number of issues in dispute and agree on the best way to conduct the arbitration.
- Some arbitration hearings can be done with just written submissions while others are done by giving oral evidence (similar to what may happen in court).
- At the hearing the parties will be given an opportunity to present their side of the story with evidence and by making submissions (saying what you want and why).
- The arbitrator will listen to both cases and make a decision.
- The matter is generally finalised when the arbitrator makes their decision (an award).
- Usually this decision is written. If you choose to you can register the decision at the Federal Court similar to registering consent orders with the court.
- There is no formal appeal process.
- A decision made by an arbitrator is legally binding in the same way that a court order is.
- This means that if one party does not comply with the decision then the other party can seek remedies.
- There are federal laws that govern who can conduct a commercial arbitration. Your lawyer is the best person to provide more information about this.
- Each state and territory can make their own laws regarding regulation and accreditation and so you will need to check what the rules are where you live.
- For more information on arbitration please see our Arbitration topic.
View more Information on Special Types of Practice