http://www.mediateadr.com/arbitration.htm ADR, Inc. Arbitration Rules and Procedures RULES APPLICABLE TO PROCEEDINGS Article I – Introductory Rules a. Where the parties to a contract have agreed in writing that disputes shall be referred to arbitration under the ADR, Inc. Arbitration Rules and Procedures (“Rules”), then such disputes shall be settled in accordance with these Rules. b. These Rules shall govern the arbitration except where any of these Rules conflict with applicable law. c. The term “arbitrator” in these Rules should be read to encompass the term “arbitration panel.” d. If a party becomes aware of a violation or failure to comply with these Rules and fails promptly to object in writing or on the record, the objection will be deemed waived, unless the arbitrator determines that waiver will cause substantial injustice or hardship. e. The arbitrator may order appropriate sanctions for failure of a party to comply with its obligations under any of these Rules. These sanctions may include, but are not limited to, assessment of costs, assessment of attorney fees, prohibition of certain evidence, or ruling on an issue submitted to arbitration adversely to the party who has failed to comply. Article II – Initiation of Arbitration a. Any party may initiate an arbitration proceeding under these Rules by submitting to ADR, Inc. an initiating document labeled “Arbitration Submission Agreement”, a “Request to Arbitrate”, or a “Request for Issuance of an Invitation to Arbitrate”. In its discretion, ADR, Inc. may permit the parties to proceed to arbitration upon their signing an “Agreement to Arbitrate” and without the necessity of submitting any of the three previously identified initiating documents. (1) An Arbitration Submission Agreement is an initiating document signed by all parties to a dispute indicating their desire to arbitrate a resolution of their differences, whether or not they have previously agreed to arbitrate under an arbitration clause of a commercial contract. ADR, Inc.’s form, Arbitration Submission Agreement, is at Appendix B to these Rules. (2) A Request to Arbitrate is an initiating document triggering the provisions of an arbitration clause of a commercial contract between or among the parties. ADR, Inc.’s form Request for Arbitration is at Appendix C to these Rules. (3) A Request for Issuance of an Invitation to Arbitrate is an initiating document requesting ADR, Inc. to invite other parties to a dispute to participate in an arbitration proceeding where the parties have entered into no pre-agreement to arbitrate. ADR, Inc.’s form Request for Issuance of an Invitation to Arbitrate is at Appendix D to these Rules. (4) An Agreement to Arbitrate is a precondition to the arbitration of any dispute under these Rules. ADR, Inc.’s form “Agreement to Arbitrate” is at Appendix E to these Rules. b. Upon receipt of a Request to Arbitrate or a Request for Issuance of an Invitation to Arbitrate, ADR, Inc. shall send forthwith a copy of the initiating document and any attached documents to the other party or parties to the dispute. Article III – Response to Request to Arbitrate or for Issuance of an Invitation to Arbitrate a. With respect to a Request to Arbitrate or a Request for Issuance of an Invitation to Arbitrate, within a period of twenty days after the date of receiving a copy of such a Request, the other parties to the dispute shall file a Response (with attachments as appropriate) with ADR, Inc. and serve one copy to each of the other parties to the dispute. b. If ADR, Inc. or the requesting party does not receive a written reply to such a Request from an invited party within 20 days of an invited party’s receipt of the Request, ADR, Inc., in consultation with the requesting party, may deem the lack of reply as a rejection of the Request or Invitation to Arbitrate the dispute. On ADR, Inc.’s written notice to the requesting party that the arbitration cannot proceed, the requesting party may seek out other dispute resolution or court alternatives to protect its interests. c. Any Response submitted by a noticed or invited party shall respond to all the allegations of the claim, or state the reasons why the responding party is not obligated to, or desires not to, participate in an arbitration proceeding. d. The arbitration proceeding shall be deemed to commence on the date that ADR, Inc. receives an initiating document. Article IV – Representation and Assistance a. Although parties usually will be represented by counsel at the arbitration, they may appear pro se. b. The name, address, and telephone number of a party’s legal representative must be communicated in writing to the other party or parties and to ADR, Inc. as soon as practicable after such representation is arranged or changed. Article V – Selection and Appointment of Arbitrator a. There shall be one neutral arbitrator, unless the parties agree that the dispute requires the decision of more than one arbitrator. b. The parties shall select a neutral arbitrator from the current list of ADR, Inc.’s neutrals. c. Parties may select two co-arbitrators to round out a three-arbitrator panel from ADR, Inc.’s list of neutrals, or, by mutual agreement of the parties, from outside ADR, Inc.’s list of neutrals. Alternatively, after selecting a neutral arbitrator from ADR, Inc.’s list of neutrals, the parties may agree to separately and independently appoint arbitrators to fill two or more vacancies on an arbitration panel. If an arbitration clause so requires, the parties may separately and independently appoint arbitrators first, and then the party-appointed arbitrators will select a neutral arbitrator from ADR, Inc.’s list of neutrals. d. If, within 30 days after the initiation of the arbitration proceedings the parties (or the party-appointed arbitrators) cannot agree on a sole neutral arbitrator or on three neutral arbitrators as the case may be, if all parties agree, ADR, Inc. may appoint a neutral arbitrator from ADR, Inc.’s list of neutrals or, if appropriate, from outside that list of neutrals to fill any remaining neutral arbitrator vacancy or vacancies on such a panel. If the parties cannot agree to this procedure, either party may apply to the Circuit Court for appointment of a neutral arbitrator pursuant to A.C.A. 16- 108-203. Article VI – Independence; Disclosure a. Every arbitrator must be and remain independent of the parties involved in the arbitration proceeding. b. No person shall serve as an arbitrator in any dispute in which that person has any financial or personal interest in the result of the arbitration, except by the written consent of all parties. c. Prospective arbitrators shall disclose any circumstances likely to give rise to justifiable doubts as to their impartiality or independence. An arbitrator, once appointed or chosen, shall disclose such circumstances to the parties unless the parties have already been informed of these circumstances. Article VII – Grounds for Challenge a. Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence. b. A party may challenge an appointed arbitrator only for reasons of which it becomes aware after the appointment has been made. Article VIII - Role of the Arbitrator The role of the arbitrator is much like that of a judge in a court of law. Regardless of the type of arbitration: a. The arbitrator may conduct the arbitration proceedings in such a manner as he or she considers appropriate, taking into account the circumstances of the case, the desires expressed by the parties, and the need for a speedy resolution of the dispute. b. The arbitrator will be guided by principles of objectivity, fairness, and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties. c. The arbitrator shall refrain from having ex parte communication with the parties or their counsel regarding substantive matters. Article IX – Authority of the Arbitrator a. The arbitrator has the authority to determine jurisdiction and the power to dismiss one or more claims in arbitration if the arbitrator determines that the arbitrator has no jurisdiction to hear such a claim or claims, that one or more claims are nonarbitrable, or that the party or parties against whom such a claim or claims are brought are improper parties. b. In a binding arbitration, after the evidentiary hearing, the arbitrator will render a binding written award. In a nonbinding arbitration, the arbitrator will render a post-hearing award that is advisory only and not binding on the parties. In baseball arbitration, after the evidentiary hearing, the arbitrator will be limited to choosing either the claimant’s or the respondent’s proposed award amount. Article X – Discovery a. The arbitrator shall have discretion to permit the parties to take necessary discovery, consistent with the needs of the parties and with the needs of the particular case, with the goal of making discovery expeditious and cost-effective. b. The arbitrator shall have discretion to permit the parties to be guided by relevant state and federal discovery rules, or other appropriate discovery rules, in obtaining any necessary discovery in the case. c. The arbitrator shall have the authority to rule on any discovery motions or objections and to issue orders protecting the confidentiality of proprietary information, trade secrets, or other sensitive information that the parties may have to disclose in discovery. Article XI – Preliminary Hearings and Prehearing Written Submissions a. Preliminary Hearing. Depending on the nature and complexity of the case, the arbitrator may schedule one or more preliminary hearings to discuss with the parties and their counsel some or all of the following topics prior to the evidentiary hearing: (1) Pleadings; pleading deadlines (2) Particular rules and law governing the arbitral procedures in the case (3) Arbitrability of all of the issues in the case (4) Discovery (5) Prehearing motions and briefing schedules (6) Witness lists and hearing exhibits (7) Observers and other attendees at evidentiary hearing (8) Fact stipulations (9) Sequestration of witnesses (10) Burden and standard of proof (11) Position statements and prehearing briefs (12) Stenographer or court reporter (13) Interpreter (14) Special needs of sight, hearing, or otherwise physically impaired parties, witnesses, or counsel (15) Hearing date, time, place (16) Estimation of length of hearing (17) Subpoenas (18) Prohibition of ex parte communications (19) Site inspections (20) Audio-visual aids (21) Experts (22) Need for final oral arguments; post-hearing proposed findings of fact and conclusions of law (23) Nature and form of award (24) Need for additional preliminary hearings b. Prehearing Written Submissions. The arbitrator shall decide whether the parties shall be required to file prior to the evidentiary hearing, prehearing statements of position or prehearing briefs. The arbitrator shall decide what the nature and length of those prehearing written submissions shall be, and the arbitrator shall fix the dates for filing them. Article XII – Date, Time and Place of Arbitration a. Unless the parties have agreed upon the place where the arbitration is to be held, such place shall be determined by ADR, Inc., having regard to the circumstances of the arbitration. b. The arbitrator, in consultation with the parties and their counsel and representatives, shall set the date(s) and time(s) of the arbitration conference(s). Article XIII – Arbitration Hearing Procedures a. General. The arbitrator shall ordinarily conduct the evidentiary hearing in the manner set forth in these Rules. The arbitrator may vary these procedures if the arbitrator determines that it is reasonable and appropriate to do so. b. Waiver of Oral Hearing. The parties may agree to waive oral hearing and submit the dispute to the arbitrator for an award based on written submissions and other evidence upon which the parties agree. c. Proceeding in Absence of Party. The arbitrator may proceed in the absence of a party who, after having executed an Arbitration Agreement and after having received reasonable notice of the hearing, fails to attend. The arbitrator may not render an award solely on the basis of the default or absence of the party, but shall require any party or parties who is/are present to submit such evidence as the arbitrator may require for the rendering of an award. d. Sequence of Hearing Events. The sequence of events in a two-party case at the arbitration hearing will normally be as follows: (1) Arbitrator makes opening statement. (2) Arbitrator handles any preliminary matters. (3) Parties make respective opening statements. (4) Swearing in of witnesses who are present. (5) Claimant presents evidence of direct case. Respondent crossexamines each witness. (6) Claimant rests direct case. (7) Respondent presents evidence of direct case and counterclaim, if any. Claimant cross-examines each witness. (8) Respondent rests direct case and counterclaim, if any. (9) Claimant presents optional rebuttal evidence. (10) Respondent presents surrebuttal evidence as arbitrator permits. (11) Parties rest their cases. (12) Claimant presents final argument. (13) Respondent presents final argument. (14) Claimant presents rebuttal argument. (15) Respondent presents surrebuttal argument as permitted by the arbitrator. e. Witnesses’ Oath. Unless otherwise agreed by the parties, witnesses will testify under oath or affirmation. f. Evidence. The arbitrator shall consider evidence that he or she finds relevant and material to the dispute, giving the evidence such weight as he or she determines is appropriate. (1) Strict conformity to rules of evidence is not required. (2) The arbitrator shall, at all times, apply the lawyer-client privilege and work product immunity principles. The arbitrator may apply other privileges and immunities as it deems appropriate to the circumstances. (3) The arbitrator may receive and consider evidence of witnesses by affidavit, by deposition testimony recorded by transcript or videotape, or by other recording device, and the arbitrator will give that evidence only such weight as the arbitrator deems it is entitled to after considering any objection made to its admission. (4) The arbitrator may permit a party or witness to testify by telephone or other mode of communication, as circumstances may require. (5) The arbitrator may require the parties to present evidence in addition to that initially offered. (6) With the agreement of the parties, including the agreement to pay for the services, the arbitrator may, if necessary to a proper determination of the dispute, appoint an expert whose testimony shall be subject to cross examination and rebuttal. (7) The parties may not offer, and the arbitrator shall not consider, as evidence prior settlement offers by the parties or statements or recommendations made by a mediator or other person in connection with efforts to resolve the dispute being arbitrated. g. Closing of Hearing. When the arbitrator determines that all relevant and material evidence and arguments have been presented, including posthearing filings, the arbitrator will declare the hearing closed. h. Stenographer. Any party may request that a stenographic or other record be made of the hearing, provided that the requesting party makes arrangements for the stenographer and bears the cost of such stenographic record unless the parties agree to share the cost. If a stenographic or other record is made of the hearing, the requesting party or parties will provide a copy to the arbitrator at no cost to the arbitrator or ADR, Inc., and make a copy available to the other parties. Article XIV – Confidentiality Unless otherwise agreed by the parties or as required by law, and except in connection with a judicial review of an award, the parties and arbitrator shall treat as confidential the entirety of the arbitration process and proceedings, including any related discovery and decisions of the arbitrator. Article XV – Post-Hearing Written Submission The arbitrator shall decide whether the parties shall be required to file after the evidentiary hearing, post-hearing briefs and or findings of fact and conclusions of law. The arbitrator shall decide the nature and length of any such post-hearing written submissions, and the arbitrator shall fix the dates for filing them. Article XVI – Award a. The award shall be in writing and shall be signed by a majority of the arbitrators. In the event of an even number of arbitrators on a panel, a tie vote will constitute a decision in favor of the respondent. A dissenting arbitrator may indicate a dissent in the award. b. The award will consist of a written statement regarding the disposition of each claim and the relief, if any, awarded as to each claim. Unless otherwise agreed by the parties, in determining the award, the arbitrator will be guided by principles of law and equity as applied to the facts of the case. To prevail, a claimant has the burden to prove a claim or claims by a preponderance of the evidence. c. Unless otherwise agreed by the parties, the arbitrator is authorized to award any remedy permitted by applicable law, including compensatory and consequential damages, punitive damages, pre or post judgment interest and attorney fees and expenses, and final or interlocutory injunctive relief. The arbitrator has discretion to assess arbitration fees and expenses in favor of either party. d. No opinion or statement of reasons supporting the award shall be provided by the arbitrator, unless requested by either party. e. The arbitrator shall issue an award within thirty calendar days after the date that the arbitrator declares the hearing closed, unless for good and sufficient reasons additional time is required, in which case, the arbitrator will advise the parties and issue the award as soon as reasonably possible. f. At any time before the award is issued and for good cause, the arbitrator, on his or her own initiative or on the motion of a party, may reopen the hearing to allow additional evidence to be introduced in the record. g. In addition to the final award, an arbitrator may issue interim, interlocutory, and partial awards as the needs of the dispute require. These awards include, among other types, rulings or orders for the preservation of assets, preservation of evidence, the conservation of goods, or the sale of perishable goods. The arbitrator may require that security be deposited for the costs of such award. h. The parties may agree at any stage of the arbitration process to submit the case to ADR, Inc. for mediation. The ADR, Inc. mediator selected or assigned to the case will not be an arbitrator on the case unless the parties agree in writing. i. If the parties inform ADR, Inc. in writing that they have reached a settlement, the arbitration proceedings will be deemed terminated. If the parties request, the arbitrator will set forth the terms of the agreed settlement in an award which will be titled “Consent Award” and will be binding on the parties. Article XVII – Motions to Modify or Correct Award and for Reconsideration a. Within fifteen days after the date of the award, either party may request the arbitrator to correct in an award any errors in computation, any clerical or typographical errors, or any errors of a similar nature. The arbitrator may make corrections on the basis of such motion, or on his or her own initiative, within thirty days after the date of the award, unless the time period is extended by the arbitrator. b. Motions for reconsideration of an arbitrator’s decision in an award may be filed, within fifteen days after the date of the award, only if the arbitrator permits such motion to be filed for good cause. Good cause would include the issuance of a recent court opinion of a pertinent jurisdiction dispositive of the claim or case before the arbitrator, which court opinion was not known or available to the parties or the arbitrator at the time the parties submitted their post-hearing briefs. Article XVIII – Expense a. The parties shall each be responsible for their own expenses and costs. b. In addition, unless the parties agree to some other proportion or division of responsibility, the parties shall be responsible to pay their pro-rata share of the following expenses of the arbitration proceedings: (1) The fees of the ADR, Inc. arbitrator(s) to be stated separately as to each arbitrator and to be fixed by ADR, Inc. in accordance with Article XIX; (2) The travel and other expenses incurred by the ADR, Inc. arbitrator(s); (3) The costs of expert advice and of other assistance required by the ADR, Inc. arbitrator(s), as approved in advance by the parties; (4) The travel and other expenses of other individuals to the extent such expenses are approved in advance by ADR, Inc. arbitrator(s) and the parties; (5) Administrative fees and expenses of ADR, Inc. c. Parties shall separately make private arrangements with any partyappointed arbitrators for payment of their fees and expenses. Article XIX – Arbitrator Fees a. ADR, Inc. arbitrators shall be paid an administrative fee and hourly fee plus expenses at rates or method of calculation which will be communicated to the parties by ADR, Inc. at the commencement of the arbitration proceedings. Article XX – Deposit of Expenses and Arbitrator Fees a. ADR, Inc. may require each party to deposit an equal amount as an advance for the expenses and fees referred to in Rules at Article XVIII and XIX. b. During the course of the arbitration proceedings, ADR, Inc. may require supplementary deposits from the parties. c. If the required deposits are not paid in full within thirty days after the parties’ receipt of the request to make deposits, ADR, Inc. shall so inform the parties in order that one or another of them may make the required deposit. If such deposit is not made, ADR, Inc. may order the suspension or termination of the arbitration proceedings. d. After the arbitration proceedings have concluded, ADR, Inc. shall render an accounting to the parties of the deposits received and return any unexpended balance to the parties or bill the parties for any balance due. APPENDIX B ARBITRATION SUBMISSION AGREEMENT (For Use When All Parties Agree to Arbitration, Whether or Not an Arbitration Clause in a Commercial Contract Exists) The undersigned parties are unable to resolve their differences through direct and/or assisted negotiations and are identified by name and, in addition, by the address and telephone number of themselves or their counsel (also named) as follows: The dispute is/is not (circle one) a filed court case. If it is a filed court case, the name and docket number of the case are as follows: The nature of the dispute, points at issue, and relief or remedy sought are as follows: This dispute arises/does not arise (circle one) under a commercial contract. If it so arises, the commercial contract is attached to this Arbitration Submission Agreement and the provision in dispute appears on page _____ at _______________; the arbitration clause appears on page _____ at _______________. Other relevant documents are/are not (circle one) attached. We have read the ADR, Inc. Arbitration Rules and Procedures (“Rules”), and we voluntarily agree to submit our dispute to arbitration administered by ADR, Inc. under its Rules, as modified by agreement of the parties as follows: We have agreed to use the services of the following arbitrator(s) from ADR, Inc.’s list of neutrals: We have agreed to use the services of the following co-arbitrator(s) not appearing on ADR, Inc.’s list, identified by name, address and telephone number below: If we have listed no arbitrator, we request that an arbitrator be appointed by ADR, Inc. in accordance with Article V of its Rules. We agree that the appointed arbitrator should have the following special qualifications: We agree that the place of the arbitration should be: We agree that an interpreter is/is not (circle one) required for the arbitration. If an interpreter is required, we have agreed to the following manner and method of selection and payment. We agree to make deposits for the estimated fees and expenses and to pay any additional fees and expenses for which we are obligated in a timely manner as requested by ADR, Inc. and in accordance with the provisions of Articles XVIII, XIX and XX of the Rules. Party:_______________; Signatory:_______________ Date:_______________ Party:_______________; Signatory:_______________ Date:_______________ Party:_______________; Signatory:_______________ Date:_______________ Party:_______________; Signatory:_______________ Date:_______________ APPENDIX C REQUEST FOR ARBITRATION (For Use When a Party Desires to Initiate an Arbitration under an Arbitration Clause of a Commercial Contract) The undersigned party is unable to resolve its differences through direct and/or assisted negotiations with the following parties identified below by name and, in addition, by the address and telephone number of themselves or their counsel. The undersigned party requests and authorizes ADR, Inc. to contact the other party or parties to the dispute and notify it or them that the undersigned party is invoking the arbitration clause of the below-described commercial contract to initiate an arbitration and is requesting that ADR, Inc. administer the arbitration proceedings. The nature of the dispute, points at issue, and remedy or relief sought are as follows: This dispute arises under a commercial contract attached to this Request for Arbitration. The contract provision in dispute appears on page _____ at _______________; the arbitration clause appears on page _____ at _______________. Other relevant documents are/are not (circle one) attached. The undersigned party would like to use the services of one of the following arbitrators from ADR, Inc.’s list of neutrals, in order of preference: (If applicable): Pursuant to the arbitration clause, the undersigned party has selected and contacted the following arbitrator to serve as its party-appointed arbitrator in this matter (identify by name, address, and telephone number): If the undersigned party has listed no preferred arbitrator, the undersigned party requests that an arbitrator be appointed by ADR, Inc. in accordance with Article V of ADR, Inc.’s Arbitration Rules and Procedures (“Rules”). The undersigned party requests that the appointed arbitrator should have the following special qualifications: An interpreter is/is not (circle one) required for the arbitration. If an interpreter is required, the undersigned party proposes the following manner and method of selection and payment of an interpreter: The undersigned party agrees to make deposits for the estimated fees and expenses and to pay any additional fees and expenses for which it is obligated in a timely manner as requested by ADR, Inc. and in accordance with the provisions of Articles XVIII, XIX and XX of the Rules. Party:_______________; Signatory:_______________ Date:_______________ To the extent possible, a Request for Arbitration (“Request”) shall contain: (1) A Statement requesting that the dispute be referred to arbitration or arbitration hybrid; (2) The names, addresses, and telephone numbers of the parties to the dispute and of all counsel, representatives and persons providing assistance to the parties, if known; (3) A reference to, and a copy of, the arbitration clause or the separate arbitration agreement that is invoked, if applicable; (4) A reference to, and copy of, the contract out of, or in relation to, which the dispute arises, if applicable; (5) A statement of facts supporting any claim and an indication of the amount involved, if any; (6) The points at issue; (7) The relief or remedy sought, if known; (8) Proposed arbitrator(s), if parties have not previously so agreed; and (9) A proposal as to the place of arbitration, if parties have not previously so agreed. The requesting party may attach to the Request any other relevant documents or may include a reference to such relevant documents in the Request. APPENDIX D REQUEST FOR ISSUANCE OF AN INVITATION TO ARBITRATE (For Use When a Party Desires to Initiate Arbitration When No Arbitration Clause of a Commercial Contract Exists) The undersigned party is unable to resolve its differences through direct an/or assisted negotiations with the following parties identified below by name and, in addition, by the address and telephone number of themselves or their counsel: The undersigned party requests and authorizes ADR, Inc. to contact the other party or parties to the dispute and invite it or them to participate in an arbitration of the dispute. The dispute is/is not (circle one) a filed court case. If it is a filed court case, the name and docket number of the case are as follows: The nature of the dispute, points at issue, and remedy or relief sought are as follows: The undersigned party would like to use the services of one of the following arbitrators from ADR, Inc.’s list of neutrals, in order of preference: If the undersigned party has listed no preferred arbitrator, the undersigned party requests that an arbitrator be appointed by ADR, Inc. in accordance with Article V of ADR, Inc.’s Arbitration Rules and Procedures (“Rules”). The undersigned party requests that the appointed arbitrator should have the following special qualifications: The undersigned party requests that the place of the arbitration should be: An interpreter is/is not (circle one) required for the arbitrator. If an interpreter is required, the undersigned party proposes the following manner and method of selection and payment of an interpreter: The The undersigned party agrees to make deposits for the estimated fees and expenses and to pay any additional fees and expenses for which it is obligated in a timely manner as requested by ADR, Inc. and in accordance with the provisions of Articles XVIII, XIX, and XX of the Rules. Party:_______________; Signatory:_______________ Date:_______________ To the extent possible, a Request for Issuance of an Invitation to Arbitrate (“Request”) shall contain: (1) A Statement requesting that the dispute be referred to arbitration or arbitration hybrid; (2) The names, addresses, and telephone numbers of the parties to the dispute and of all counsel, representatives and persons providing assistance to the parties, if known; (3) A reference to, and a copy of, the arbitration clause or the separate arbitration agreement that is invoked, if applicable; (4) A reference to, and copy of, the contract out of, or in relation to, which the dispute arises, if applicable; (5) A statement of facts supporting any claim and an indication of the amount involved, if any; (6) The points at issue; (7) The relief or remedy sought, if known; (8) Proposed arbitrator(s), if parties have not previously so agreed; and (9) A proposal as to the place of arbitration, if parties have not previously so agreed. The requesting party may attach to the Request any other relevant documents or may include a reference to such relevant documents in the Request. APPENDIX E AGREEMENT TO ARBITRATE The undersigned parties hereby agree to have arbitration services provided by ADR, Inc. for their dispute, entitled: In accordance with the following terms: Type of Arbitration or Hybrid Arbitration Process: _____Standard Arbitration; _____Nonbinding Arbitration; _____High-low Arbitration; _____Baseball Arbitration; _____Mini-trial; _____Other (Please describe) Arbitrator: The parties agree that __________________________will be the arbitrator. Location, Date and Time of Arbitration: The parties agree to conduct the arbitration at ______________________, on ________________________, beginning at ______________________. Arbitration Procedures: The arbitrator will administer the arbitration in accordance with ADR, Inc.’s Arbitration Rules and Procedures (“Rules”), as modified by agreement of the parties prior to the commencement of the arbitration. Terms of Payment are as follows: There will be a $300 administrative fee. In addition, ADR, Inc.’s hourly rate for arbitration services is $125.00 per hour/per party (subject to adjustment for multiple parties). ADR, Inc. will bill the parties prior to the commencement of the arbitration and upon the completion of the arbitration services for any additional arbitration time over the initial estimation. All expenses incurred and disbursement made in connection with the arbitration, such as photocopying, filing and recording fees, telecopying charges, postage, express mail and messenger charges, depositions, and other charges, will also be billed to the parties. All bills must be paid within thirty (30) days if work is to continue. Consulting with Attorneys: Before signing this agreement and during or between arbitration sessions, participants are encouraged to consult with attorneys regarding their legal rights and obligations. The parties acknowledge that neither the arbitrator nor ADR, Inc. is giving legal advice or counsel. Confidential: The parties recognize that the award of a standard arbitration is binding upon the parties, and that parties agreeing to arbitrate waive their right to a trial de novo. The parties agree that they shall not subpoena or otherwise require the arbitrator to testify or produce records, notes or work product in any future proceedings. _________________________ ____________________ Signature of Plaintiff Date _________________________ Print Name _________________________ ____________________ Signature of Plaintiff Attorney Date _________________________ _________________________ Print Name _________________________ ____________________ Signature of Defendant Date _________________________ Print Name _________________________ ____________________ Signature of Defense Attorney Date _________________________ Print Name The Agreement to Arbitrate must include an indication of the specific type of arbitration or arbitration/ADR hybrid that the parties are agreeing to use. At least one of the following processes must be indicated: (1) Standard binding arbitration: a process in which one or more arbitrators render a binding decision after hearing arguments and reviewing evidence regarding a matter in dispute. (2) Standard nonbinding arbitration: a process in which one or more arbitrators render a nonbinding decision after hearing arguments and reviewing evidence regarding a matter in dispute. The nonbinding decision can then be used as a basis for negotiating or mediating a settlement of the dispute. (3) High-low arbitration: a process in which the parties negotiate or mediate to impasse, and then proceed to arbitration. Plaintiff’s last settlement demand and defendant’s last offer establish a bracket defining the limits of the arbitrator’s award in the case. The arbitrator conducts the arbitration without knowledge of the endpoints of the bracket. The parties are free to make any evidence-based arguments they wish regarding damages, and assuming that the arbitrator determines the defendant to be liable, he or she makes a decision on damages as if it were ordinary arbitration. When the arbitrator renders an award, neither party will be liable for or entitled to a figure outside the agreed-to bracket. (4) Baseball arbitration: a process that is a type of “last best offer” arbitration in which the disputing parties agree in writing to negotiate to only one position – their last and best offer – and then submit the dispute to arbitration. In baseball arbitration, the arbitrator must choose the last best offer of one of the parties and may not find a different result in any circumstance. (5) Arb-med: a process in which the parties first proceed to arbitration before an arbitrator who will render a binding decision. When the decision is made, it is not shown to the parties. Rather the arbitrator places it in a sealed envelope. Thereafter, the parties can negotiate a resolution on their own, or they can involve the arbitrator as a mediator to help mediate a resolution. The arbitrator’s decision, having already been made, will not be influenced by any confidential information of the parties. If the negotiations or mediation are unsuccessful, the parties open the sealed envelope and are bound by the award. (6) Med-arb: med-arb combines mediation and arbitration, beginning with mediation. The parties determine a definite time limit for mediation. If they are unable to reach an agreement in the time allowed, the mediator/arbitrator holds an arbitration-like hearing and issues a binding decision, as in a standard binding arbitration. If either party objects to the mediator serving as arbitrator, a different person will be selected to serve as arbitrator. (7) Mini-trial: an abbreviated trial-like process is most appropriately used in complex cases. When limited discovery is complete, the parties to the mini-trial exchange brief position summaries, which include document and witness lists to be used at the hearing. The number of witnesses and trial exhibits designated in the summaries is kept to a minimum. The mini-trial panel normally consists of three people: a business executive from each side, and a third party neutral. After an abbreviated trial-like hearing, negotiation between the business executives commences, assisted by the third-party neutral, as necessary. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Why Choose eCOURT As Your Arbitrator In one respect, arbitration is like a bench trial in court, with the arbitrator considering evidence and deciding the factual and legal issues. But effective arbitration differs from a trial to a judge in several important respects. Court proceedings are governed by the Rules of Civil Procedure, which allow for a lot of discovery. Arbitration, on the other hand, is governed by the parties’ contract (which is entered into either before or after the dispute arises). The contract might specify what rules govern the proceeding, and those rules (whether self designed or adopted from a dispute resolution provider, such as the American Arbitration Association) often limit the discovery that is allowed or leave the scope of discovery to the arbitrator’s discretion. In addition, the law could limit the ability to conduct discovery. For example, both the Federal Arbitration Act and the Uniform Arbitration Act (adopted in Arizona) do not give an arbitrator the power to subpoena someone who is not a party to the arbitration to give deposition testimony. Courts are bound by the Rules of Evidence, while arbitrators generally are not (unless the arbitration agreement requires that those rules be followed). Decisions by a judge after a trial can be appealed, but with very limited exceptions, an arbitrator’s factual and legal determinations are final. Judges have hundreds of cases active at any one time and it may take a very long time to get a case to trial. Arbitration should allow for a much quicker final hearing. Maybe of utmost importance to the parties, judges are paid by the government, but the parties pay the arbitrator. With those considerations in mind, I try to make the arbitration process as efficient and expeditious as possible. Assuming the adopted rules do not prescribe otherwise, I generally have the parties exchange information and evidence to limit the need for formal discovery requests. I require telephonic conferences, without briefing, to resolve discovery disputes. I discourage dispositive motions, primarily because the governing statutes may require a court to invalidate an arbitration award if a party is not given an opportunity to present evidence at a hearing, and so the costs (in money and time) associated with briefing and arguing such a motion (when it is not based on stipulated facts) are often wasted. I try to schedule hearings within six months from when the matter is at issue, but I am sensitive to the need for flexibility to accommodate the schedules of everyone involved. I make sure I come to the final hearing prepared, having read everything the parties have given me (unless instructed not to read something that may be objected to) including pertinent legal authorities. I urge the parties, both before and during the hearing, to avoid cumulative or repetitive evidence. Once the matter has been submitted to me for decision, I almost always have an award in one week or less. And unless instructed otherwise by the parties (which has never happened), my award explains the reasons for my decisions on the various matters at issue. I have never had an award set aside or modified by a court. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Arbitration Law Canada ARBITRATION The law relating to arbitration in Canada is governed by the Arbitration Act, which came into force in the year 1995. The arbitration in its generic meaning to negotiate to resolve differences conducted by some impartial party in an amicable manner without approaching the Court. The arbitration may take place pursuant to an arbitration agreement or a clause for arbitration in a contract. The "arbitration agreement" means an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them. In case any dispute arises between the parties they resolve the disputes pursuant to the arbitration agreement by submitting to an independent umpire to adjudicate the matter of several persons forming an Arbitral Tribunal. ARBITRATOR If the arbitration agreement does not specify the number of arbitrators who are to form the arbitral tribunal, it shall be composed of one arbitrator. The arbitral tribunal may also be appointed on a party's application to The Court of Queen's Bench of New Brunswick, if 1.the arbitration agreement provides no procedure for appointing the arbitral tribunal, or 2. a person with power to appoint the arbitral tribunal has not done so after a party has given the person seven days notice to do so. If the arbitral tribunal is composed of three or more arbitrators, they shall elect a Chair from among themselves; if it is composed of two arbitrators, they may do so. CONDUCT OF ARBITRATION In an arbitration, the parties shall be treated equally and fairly. Each party shall be given an opportunity to present a case and to respond to the other parties' cases. An arbitral tribunal that is composed of more than one arbitrator may delegate the determination of questions of procedure to the chair. In an arbitration, the arbitral tribunal shall admit all evidence that would be admissible in a court and may admit other evidence that it considers relevant to the issues in dispute. The arbitral tribunal may determine the manner in which evidence is to be admitted. The arbitral tribunal shall determine the time, date and place of arbitration, taking into consideration the parties' convenience and the other circumstances of the case. An arbitration may be commenced in any way recognized by law, including the following: 1.a party to an arbitration agreement serves on the other parties notice to appoint or to participate in the appointment of an arbitrator under the agreement; 2.if the arbitration agreement gives a person who is not a party power to appoint an arbitrator, one party serves notice to exercise that power on the person and serves a copy of the notice on the other parties; or 3. a party serves on the other parties a notice demanding arbitration under the agreement. An arbitral tribunal requires that the parties submit their statements a specified period of time. The parties' statements shall indicate the facts supporting their positions, the points at issue and the relief sought. The arbitral tribunal may conduct the arbitration on the basis of documents or may hold hearings for the presentation of evidence and for oral argument; however, the tribunal shall hold a hearing if a party requests it. The arbitral tribunal shall give the parties sufficient notice of hearings and of meetings of the tribunal for the purpose of inspection of property or documents. A party who submits a statement to the arbitral tribunal or supplies the tribunal with any other information shall also communicate it to the other parties. If the party who commenced the arbitration does not submit a statement within the period of time specified under subsection 25(1), the arbitral tribunal may, unless the party offers a satisfactory explanation, make an award dismissing the claim. An arbitral tribunal may administer an oath or affirmation and power to require a witness to testify under oath or affirmation. On the application of a party or of the arbitral tribunal, the court may make orders and give directions with respect to the taking of evidence for an arbitration as if it were a court proceeding. AWARDS AND TERMINATION OF ARBITRATION An arbitral tribunal shall decide a dispute in accordance with law, including equity, and may order specific performance, injunctions and other equitable remedies. The arbitral tribunal shall decide the dispute in accordance with the arbitration agreement and the contract, if any, under which the dispute arose, and shall also take into account any applicable usages of trade. If an arbitral tribunal is composed of more than one member, a decision of a majority of the members is the arbitral tribunal's decision; however, if there is no majority decision or unanimous decision, the chair's decision governs. An award shall be made in writing and, except in the case of an award made on consent, shall state the reasons on which it is based. The award shall indicate the place where and the date on which it is made. The award shall be dated and shall be signed by all the members of the Arbitral Tribunal, or by a majority of them if an explanation of the omission of the other signatures is included. A copy of the award is then delivered to each party. A party may, within thirty days after receiving an award, request that the arbitral tribunal explain any matter. If the arbitral tribunal does not give an explanation within fifteen days after receiving the request, the court may, on the party's application, order it to do so. The arbitral tribunal may, on its own initiative at any time or at a party's request made within thirty days after receiving the award, make an additional award to deal with a claim that was presented in the arbitration but omitted from the earlier award. APPEALS A party may appeal against an award to the Court of Queen's Bench of New Brunswick on a question of law with leave, which the court shall grant only if it is satisfied that 1.the importance to the parties of the matters at stake in the arbitration justifies an appeal, and 2. determination of the question of law at issue will significantly affect the rights of the parties. On a party's application, the court may set aside an award on any of the following grounds: 1.a party entered into the arbitration agreement while under a legal incapacity; 2.the arbitration agreement is invalid or has ceased to exist; 3.the award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement; 4.the composition of the tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with this Act; 5.the subject- matter of the dispute is not capable of being the subject of arbitration under New Brunswick law; 6.the applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party's case, or was not given proper notice of the arbitration or of the appointment of an arbitrator; 7.the procedures followed in the arbitration did not comply with this Act; 8.an arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias; or 9. the award was obtained by fraud. However, an appeal from the court's decision in an appeal of an award, an application to set aside an award or an application for a declaration of invalidity may be made to The Court of Appeal of New Brunswick, with leave of The Court of Appeal of New Brunswick. COSTS OF AN ARBITRATION The costs of an arbitration consist of the parties' legal expenses, the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration. If the arbitral tribunal does not deal with costs in an award, a party may, within thirty days of receiving the award, request that it make a further award dealing with costs.