Lawyer Monthly - December 2021 Edition

MY LEGAL LIFE - CHERYL CORDEIRO 27 DEC 2021 | WWW.LAWYER-MONTHLY.COM hear each side’s story in the form of written or oral evidence and make a binding decision by applying the law to the facts. People choose arbitration when they need a binding decision made but do not want to go to court. On the surface a judge and arbitrator are the same, as they are both have the role of being a neutral third party that imposes a ruling to a dispute between two disputing parties that are unable to collaboratively come to a resolution. Moreover, both arbitration and litigation are meant to be adversarial in natural, as neither party are expected to get along and “both processes follow the principles of fundamental justice, thus they are designed to be fair to both parties and that both parties have the right to make their case and reply to the case against them.” Arbitration is the more flexible of the two, as a court of law is governed by an extremely formal process in addition to statutory and procedural rules; whereas and implementing mediation within this context generates hostility, as neither party is required to participate in court- mandated mediation past attendance. As Janet Walker highlighted, “mediation is perceived as supportive, facilitative, non- conflictual: everything that is inherently good in a dispute resolution process”. However, in reality, mediation within this format can generate hostility due to the fact that in some marriages there is clearly fault, and it would create further confusion if this could not be referred to. There is no other area of law where such attempts are made to ignore causation and blame. Consequently, most family law clients are left feeling like they are left with no other alternative but to engage in the costly and time-consuming litigation process, adding to the enormous number of litigants entering the court system without the benefit of counsel – some by choice but most by necessity. In a 2013 survey, Justice Gray found that sheer volume of such litigants, as high as 80% in some jurisdictions, had a negative impact on the efficiency of the court system, as lack of familiarity with the law, court processes and the rules of evidence increase the number of poorly founded claims, the number of adjournments and the length of time to resolve both interim applications and claims. Please tell us a little about the effective differences between litigation and arbitration in family law. What are the relative costs and timeframes involved? What common misconceptions about mediation and arbitration would you like to dispel? Arbitrators act as private judges; they Most family law clients are left feeling like they are left with no other alternative but to engage in the costly and time-consuming litigation process.