Hearing Panelists' Roles
- Familiarize yourself with the case.
- Know how to pronounce everyone’s name, including those of the hearing panelists, parties, witnesses, and counsel.
- Start the hearing on time.
- Be flexible as necessary (such as allowing a witness to testify out of order if it makes sense to do so), but be firm. You are in charge of the hearing process.
- Make sure the hearing table is cleared of miscellaneous material.
- Call a recess if emotions run high among parties, witnesses, counsel, or hearing panelists.
- Familiarize yourself with the concepts of due process.
- Learn the procedures and read through the relevant appendices in NAR's Code of Ethics and Arbitration Manual.
- If you are unsure about how to proceed, call a recess and meet with staff, other members of the hearing panel, and/or counsel for assistance.
- Read the “Hearing Panelist Preparation and Etiquette” checklist.
- Familiarize yourself with the case.
- Wait to be acknowledged by the chair before asking questions.
- If you find that you personally need to take a recess or if you think that a recess is necessary to correct a problem, then pass a note to the chair.
- Read the “Hearing Panelist Preparation and Etiquette” checklist below.
Hearing Panelist Preparation and Etiquette
Confidentiality Note: It is essential for all panel members, including the chair, to maintain confidentiality before, during, and after a hearing. Do not discuss the case with anyone, except as required by the board of directors, bylaws, or law.
- Dress in professional business attire.
- Review all hearing materials carefully.
—Ethics: Review all relevant Code Articles, Standards of Practice, and Case Interpretations.
—Arbitration: Review the Arbitration Guidelines in the Code of Ethics and Arbitration Manual.
- You may write questions out in advance, but be certain to go into the hearing with an open mind.
- Be impartial going into the hearing. Ask to be excused from the panel if you are not absolutely certain you can be impartial.
- Do not discuss the case under any circumstances, except as authorized by the Code of Ethics and Arbitration Manual.
- Only the tribunal, staff, and/or board counsel are permitted to be in the hearing room before the hearing.
- Be sure the recorder is turned off until the hearing begins.
- Do not talk to either party, their counsel, or their witnesses prior to the hearing for any reason. If a party, their counsel, or a witness approaches you prior to the hearing, politely explain that they can make their comments to or ask their questions of staff. To protect the integrity of the process, you need to remain neutral and be perceived as being impartial.
During the Hearing
- Chair follows procedural guide provided in the Code of Ethics and Arbitration Manual.
- Chair takes and maintains charge of the proceeding, calmly and sensitively explaining “rulings.”
- Chair strives to focus discussions on relevant subjects.
- Chair asks witnesses to leave the room after they are sworn in and after presenting their testimony.
- Doors are to be kept closed throughout.
- Give the hearing full attention.
- Watch your body language. Sit straight, lean forward, and look alert and attentive.
- Avoid movements such as head-shaking (in agreement or disbelief), rolling your eyes, or raising your eyebrows.
- Avoid showing you are tired, bored, or annoyed. No napping!
- Be an excellent listener. Ask for clarification from the appropriate person, when necessary, if you do not understand something.
- Do not make statements; only ask relevant questions.
- When asking questions:
- watch your tone of voice
- wait to be recognized by the chair and, ideally, save questions until after the parties have had an opportunity to question each other
- avoid asking leading questions
- ask questions in a positive and generally open ended manner
- ask questions to clarify a point not understood, not to assist either party
- stay away from judgment words and phrases such as “do you mean to tell me”
- When addressing anyone during the hearing:
- speak slowly and evenly
- do not interrupt; only one person should speak at a time
- be consistent; do not use the first name of one party and the surname of another
- Allow each side to present his or her case without interference or interruptions.
- Distinguish between “hearsay” and legitimate evidence, but be neutral.
- Stop everything if antitrust issues come up; consult counsel.
- Address all procedural questions to the chair (pass a note, if necessary, or ask for a recess).
- Do not eat, drink, or smoke during the hearing.
- If a break is necessary for some reason, request a recess.
- Do not wear a company name badge.
- Keep all surfaces clean and uncluttered, except for relevant hearing materials. Remove pop cans, lunch bags, coffee cups, etc.
- Shut off all cell phones and pagers.
- Do not try to assist either side. It is not your fault if a party presents a weak case.
- Do not refer to “general practices” of the market area or board.
- Avoid laughing even if something is funny. It is possible that one or both of the parties might not appreciate your sense of humor, upon appeal.
- Do not leave the hearing to take a call.
- Relax, smile, and be courteous and professional at all times.
- Turn off the recording and make sure that once parties leave, all doors are closed.
- Only the tribunal, staff, and/or board counsel are permitted to be in the hearing room during the executive session.
- During executive session, panelists may disagree, but should debate all dissenting opinions in a professional and productive manner. Focus on the goal to make the best decision or award possible, considering the evidence presented.
- Do not ask parties and witnesses more questions once the hearing has adjourned. No submissions of additional information are permitted, either.
- Concisely present an opinion. Avoid making personal or derogatory comments about any party, witness, or counsel.
- The complaint may not be amended.
- The matter stands as presented and the hearing panel may not request further clarification or documentation or refer ethical concerns to the grievance committee.
- Only after finding the respondent in violation of the Code of Ethics, for progressive discipline purposes, you may ask for a respondent’s professional standards record.
- Write findings of fact under the assumption that the reader knows absolutely nothing about the case.
- If discipline is included, be specific about exactly when the discipline must be fulfilled and include any additional penalties that may be automatically invoked for failure to comply by the date specified.
- Do not take phone calls or answer email from the parties concerning the case. Remind the parties that all communication and clerical flows through the staff executive and you are not at liberty to discuss the matter with them.
- If physically approached by a party wanting to discuss the case, decline to discuss any aspect of the case or the hearing panel’s decision making process. Be polite and professional but firm. Direct the party back to staff, reminding them that all communication flows through staff per Section 10, Communication and Clerical, of the Code of Ethics and Arbitration Manual.
- Do not discuss the case with anyone other than those who you are authorized to discuss the case with in keeping with the Code of Ethics and Arbitration Manual. Remember, if you breach confidentiality, you are subject to an allegation of a violation of Article 14 of the Code of Ethics.