New Zealand Law Society - Running a major relationship property arbitration

Running a major relationship property arbitration

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In a previous article (LawTalk 932, September 2019), I suggested ways in which modest to middle level disputes could be dealt with by expedited arbitration. In this article I consider major relationship property disputes. Major relationship property disputes are assumed to be those in which trusts or companies are involved or in which more than $750,000 is at stake.

Every arbitration aspires to speed and economy. Major relationship property arbitrations are no exception. However, relatively elaborate procedures may be justified where they would not be disproportionate to the magnitude of the dispute. In such cases the arbitration is likely to pass through a series of steps if it does not settle at some point along the way:

  1. Parties agree on who they want as arbitrator, ask AMINZ to appoint one, or approach a dispute resolution institution to manage the appointment and the process.
  2. Arbitrator organises a preliminary conference with lawyers and parties. Can be done by phone (especially where lawyers or clients are at a distance) but ideally in person.
  3. Arbitrator provides precedent arbitration agreement under s 21A of the Property (Relationships) Act 1976. Signed by clients (and sometimes trustees) following full lawyer certification requirements under s 21F.
  4. Factual statements and disclosure by each party in accordance with timetable set at the preliminary conference, usually taking the form of (i) affidavits setting out factual background and a list of current assets, liabilities, and values plus (ii) voluntary disclosure of any additional documents that the other party may wish to see.
  5. (If required) requests by one party for further documents and information held by the other followed by either voluntary compliance or conference with arbitrator to resolve.
  6. Each side provides to the arbitrator and other party a non-binding spreadsheet analysis of assets, liabilities, values and suggested division.
  7. Issues conference with arbitrator. Usually results in settlement. Otherwise directions given for remaining steps required to resolve outstanding issues.
  8. Each party provides final affidavits, final spreadsheet analysis and synopsis of submissions.
  9. A defended hearing with parties and lawyers present.
  10. Award from the arbitrator. If required the award can be filed in the High Court and enforced.

In practice at least four out of five relationship property arbitrations settle at some point along that continuum. The trigger for settlement is likely to be one of the following:

  • effective disclosure by both sides due to timetabled discovery on a voluntary basis or, where necessary, mandatory directions from the arbitrator; or
  • crystallising of issues due to the parties’ exchange of spreadsheet analyses of assets, liabilities, values and suggested division; or
  • appreciation of strengths and weaknesses due to an issues conference with the arbitrator.

If the dispute does not settle, there will need to be a defended hearing followed by an arbitration award. This part of the process will have much in common with a conventional civil trial followed by a reserved judgment. A major difference, however, is that the issue of an award will normally signal the end of the dispute. The opportunities to challenge an arbitration award are very narrow. There is no general right of appeal.

Robert Fisher QC is a member of Bankside Chambers, a former High Court Judge and the author of Fisher on Matrimonial Property. Since leaving the bench he has been in full-time practice as an arbitrator and mediator.

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