Date of this Version

August 2006

Document Type

Journal Article

Publication Details

This document has been peer reviewed.

Wade, John (2006) Arbitral decision making in family property disputes - lotteries, crystal balls, and wild guesses Bond Dispute Resolution News Vol 23, Aug. pp 9-37.

Copyright © John Wade & Bond Dispute Resolution News. All Rights Reserved.

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[Extract] Outline: 240 expert family lawyers in Australia, acting as arbitrators, wrote judgments/awards. on an identical set of facts. These decisions varied dramatically in outcomes. This paper describes the process and varied outcomes. It then discusses why the consistently diverse range of outcomes caused such grief for these experts; what are the possible explanations for these diverse outcomes; and what are some possible implications if expert decision-makers consistently reach such diverse decisions?

Introduction – Historical Background : In 1991, a group of people associated with the Dispute Resolution Centre at Bond University were invited by the Law Council of Australia to design a three-day training course for arbitration of family property disputes. The designers attempted to follow adult learning theories and used learning ideas from the successful mediation courses run through the Dispute Resolution Centre at Bond University. The family arbitration course has since been held on nine occasions around Australia and over 240 of the most respected and “expert” family law specialists in the nation have attended.2 Many hoped to become family arbitrators, or to participate in family arbitrations as legal representatives, due to legislative developments in that field in Australia in 1990s.

The Decision-Making Exercise: One of the learning modules at each of the nine arbitration courses required each family lawyer participant to write a judgment overnight on a set of facts which were given to each person at the end of the second day of training. This exercise replicated a budget arbitration-on-the-papers, which was predicted to be the most popular form of family property arbitration, particularly for poor and middle-class families in Australia. (In reality, on-the-papers arbitration is unlikely to blossom until successful pilot projects are funded by Legal Aid offices around Australia.)

These are the instructions attached to this exercise. The facts in the problem were the same in each of the nine courses, though dates of events were adjusted to make the family separation occur close to the date of the course.


(i) You have been appointed arbitrator in a budget “paper” arbitration. The attached two submissions from Fred and Mabel have been faxed to you together with an “arbitrator’s fee” of $400.

(ii) You are leaving for overseas this afternoon and the parties want an immediate result (reasons for the judgment are to be given).

(iii) If more time and money to pay you and the legal representatives and/or valuers were available, what (i) extra steps and (ii) extra information would you have liked?”

In summary, the facts of the case involved a nine-year marriage between Fred and Mabel; three children residing with the mother; and a pool of assets valued between $80,000 and $92,000 to be divided between the husband and wife. The actual copies of the submissions faxed to each arbitrator are attached to this paper as Annexure “A”. The participants wrote their judgments and reasons overnight, and handed these in at 9am on the third day of the course. The vast majority of the over 240 judgments conformed with judicial style of writing and the majority were model judgments in form. This occurred presumably because of the expertise of the nine groups as family lawyers, and some guidance on form of judgment writing in the course materials. An example of the high standard of judgment writing from these courses is attached to this paper as Annexure “B”.

Two members of the training team (often John Hertzberg and another) then took two hours to compile the substantive results of each group of participants, and to compare these. A written summary of decisions was then distributed, explained and a discussion session followed. This exercise provided a rare opportunity for over 240 expert family lawyers to make a considered decision in writing on an identical set of facts. The results uniformly were controversial, not predicted, and shocking for each group of experts.



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