Can we move our divorce and property settlement out of court and into private arbitration?

The situation

My ex-partner and I are currently going through a messy separation in Melbourne, Victoria. We have been living apart since last January, and we have two young children to consider. We have already spent a significant amount of money on solicitors over the last six months trying to settle our finances privately, but we have hit a complete deadlock regarding the family home and our superannuation splits. Because we cannot agree, we have had to start formal proceedings in the family court to resolve the matter. My ex is actually quite keen on avoiding the stress of a public courtroom and thinks a private mediator or arbitrator might be a more civil way to finalise everything, provided it is legally binding. We both feel that the current court schedule is moving too slowly and is becoming incredibly expensive for both of us. If we both truly agree to step away from the judge and let a private person handle the whole dispute or just the property part of it, is that actually allowed to happen under the current system? I am unsure if the court will let us make that switch once the case has already started.

Detailed Analysis

Under the Family Law Act 1975, you have a pathway to move your dispute out of the courtroom and into a private setting. Because you have already started formal proceedings in the family court, the court has the authority to step in and facilitate this change.

Specifically, the law states that a court "may, with the consent of all of the parties to the proceedings, make an order referring the proceedings, or any part of them or any matter arising in them, to an arbitrator for arbitration"^[1]. This means that since you and your ex-partner are both keen on avoiding the public courtroom, you can request that the judge move the entire case, or just the deadlock regarding the family home and superannuation, to a private person called an arbitrator^[1].

Arbitration is a process where you present your arguments and evidence to a private person, known as an arbitrator, who then makes a final decision to resolve the dispute^[2]. This is different from mediation, where a person helps you reach your own agreement; in arbitration, the arbitrator's decision is binding.

Because your dispute involves property (the family home and superannuation), it falls under the types of proceedings that can be referred to arbitration^[2]. If the court grants this request, it may also make extra orders to help the arbitration run effectively^[1].

It is important to note that while the court can facilitate this, the process is still subject to certain rules. For example, if a legal question arises during the private arbitration that the arbitrator cannot answer, they can refer that specific question back to the court for a decision.

Statutory Citations

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