HOW DO WE START AN ARBITRATION?
The early stages of an arbitration involve three steps:
Arbitration is possible only where both parties agree to it.
The agreement may be found in an arbitration clause forming part of a larger contract. The larger contract may be a contracting out agreement or a compromise agreement. The effect of the arbitration clause is that any future disputes will be resolved by arbitration rather than court.
Alternatively an arbitration submission agreement may be entered into after a dispute has arisen.
It follows that if you want to start an arbitration, the first step is to see whether the other party is already committed to arbitration or will agree to it. An agreement to arbitrate a relationship property dispute must comply with certain formalities (as to which see ss 21A and 21F of the Property (Relationships) Act 1976). It is not necessary to choose an arbitrator before the agreement is signed.
2. Choose an arbitrator
Ideally you and the other party will also be able to agree on choice of arbitrator. If not, options are:
- Discuss with the other party a choice made from a list of suitably qualified family law arbitrators obtained from AMINZ (Arbitrators and Mediators Institute of NZ).
- (If already a binding agreement to arbitrate) apply to AMINZ to make a binding appointment.
- Discuss with the other party the possibility of voluntarily delegating the choice of arbitrator to AMINZ.
3. Preliminary meeting or phone conference
Once appointed, the Arbitrator will organise a preliminary conference. The conference will involve the Arbitrator and the parties. It will also include the parties’ lawyers if they have them. Ideally the meeting will be in person. It can be by phone, especially where the lawyers or clients are at a distance. At the conference the Arbitrator will discuss with the parties the procedure that will best meet their needs. If an arbitration agreement is still to be signed, the Arbitrator will provide a precedent.