(iv) Greater respect for the tribunal and its processes

(iv) Greater respect for the tribunal and its processes

It might be argued that for some, the image and trappings of a court will have a useful psychological impact that the relative informality of an arbitration lacks. One can only speculate. But arbitration is possible only where both parties have voluntarily elected to use that procedure. Parties seem more likely to respect the process that they themselves have chosen than one in which one of the parties is a reluctant participant. Much more important will be the way in which the individual judge or arbitrator chooses to run his or her proceedings.

Overall, it seems unlikely that respect for the tribunal will be a useful consideration when choosing between the two.

(v) Precedent-setting for the wider public good

It is possible that in time systems will be developed which enable dispute resolution organisations to publish case summaries in a way that does not endanger the confidentiality of the parties. For example memoranda could be published summarising the principles applied in a case and only such facts, if any, as could under no circumstances be traceable to individuals. As this would require much editorial input it could be undertaken only by special interest groups such as a family law arbitration service. But unless and until family law arbitration in New Zealand reaches that level of sophistication, it must be assumed that the price of arbitration will be loss of valuable precedents for the wider public.

None of this is of interest to the actual litigant. It is unrealistic to expect that in deciding which forum to choose, litigants will be influenced by a desire to contribute to family law jurisprudence. They prefer confidentiality, minimal cost, and a speedy end to uncertainty, so long as this can be achieved without risk to a just outcome. Advisers would seem bound to respect their clients’ wishes in that respect.

4. The potential advantages of arbitration

9. Procedural flexibility

Both forums are capable of offering, if appropriate, formal pleadings, further particulars, discovery, interrogatories, non-party discovery, orders for security, interim injunctions, preservation and inspection orders (referred to as “interim measures” in arbitration), witness summonses, and directions as to mode of evidence.⁶⁷

Up to that point there will be little practical difference between court and arbitration. Where the real difference lies is flexibility. The procedural constraints upon arbitrators are few and rudimentary: they must treat the parties equally,⁶⁸ comply with natural justice,⁶⁹ observe any procedural requirements in the arbitration agreement, and allow each party to present his or her case.⁷⁰ But this leaves arbitrators largely free to conduct the arbitration “in such manner as the arbitral tribunal considers appropriate”.⁷¹ In practical terms the arbitration can be run in the way that best suits the parties.

Given that level of flexibility, arbitration should not be thought of as a uniform procedure. Each dispute calls for its own process. In deciding what procedure a dispute calls for, the two questions to ask are (i) how much can sensibly be spent in resolving this dispute (“the Rolls Royce continuum”) and (ii) what techniques best suit this particular case (“let the punishment fit the crime”).

At virtually every point in an arbitration a procedural choice lies between the elaborate and the rudimentary.

At the elaborate end of the scale, there may be a panel of three arbitrators, formal pleadings, full Peruvian Guano discovery, personal attendance at conferences and interlocutory hearings, service of full briefs of evidence and a formal oral hearing at which a full daily transcript is distributed. That can be followed by rights of review and appeal to the High Court, the Court of Appeal and the Supreme Court.

At the other end of the scale there may be a sole decision-maker sitting as expert rather than an arbitrator, an exchange of letters to identify the issues, no discovery, and a decision made on the papers without hearing or right of appeal or review.

Most relationship property arbitrations fall somewhere near the middle of that procedural continuum. But where a case is placed on the continuum should be a conscious decision to be exercised individually. The procedure warranted for an argument over the division of a commercial empire is unlikely to suit an argument over a house or car. Courts are less attuned to the need for proportionality in time and cost.

Let the punishment fit the crime

The second question is which techniques will best resolve the particular dispute. All relationship property proceedings have the assembly of past and present property details at their core. But some may be dealt with in a round table discussion, some on the papers without a hearing and some at an oral hearing with cross-examination on the affidavits.

Due to their training and background, lawyers instinctively lean towards procedures that mimic the approach that would have been taken in court. Court-like procedures also have the security of the familiar. Lawyers are less likely to feel at home in a kitchen with everyone talking at once and the arbitrator conducting a test to see which spouse the disputed cat prefers. But arbitration is an opportunity for flexibility and imagination. What matters is the outcome for the parties, not legal convention.

The object is to be constantly on the alert for shortcuts which save time and money without prejudicing the outcome. There is more room for this in arbitration than in court proceedings.