An arbitration hearing must be conducted in a manner which is fair to all parties. This means that the parties must know their rights and responsibilities in advance so they may properly prepare and present their positions. Procedures are required to assure an orderly hearing. But procedures may and should be modified as interests of justice and truth dictate. However, in modifying established procedures, care must be taken to assure that the rights and interests of all parties are protected. For this reason, variation from prescribed procedures should be reviewed with Board counsel and counsel for the parties prior to implementation.
Following are six (6) outlines. The first and second are outlines of procedural information of interest and concern primarily to the parties involved. This information should be provided to them well in advance of any hearing (Form #A-10 and Form #A-10a, as appropriate, Part Thirteen). The third outline is primarily of interest to Hearing Panels and particularly to the Chairpersons who preside over arbitration hearings. The fourth outline is primarily of interest to Hearing Panels and particularly to the Chairpersons who preside over interboard arbitration hearings. The fifth and sixth outlines are primarily of interest to tribunals and particularly to Chairpersons who preside over procedural review requests and interboard procedural review requests, respectively.
Outline of Procedure for Arbitration Hearing
Board of REALTORS®
State of ___________________________________________
(To be transmitted in advance to both parties.)
Remote Testimony: Hearings may be held in person, virtually, or a combination therof. If the hearing is in person, testimony provided in the physical presence of the Hearing Panel is preferred, however, parties and witnesses to arbitration hearings may be permitted to participate virtually in hearings at the discretion of the Hearing Panel Chair. Associations may, at their sole discretion, hold hearings where all parties must participate virtually. (Revised 11/21)
Postponement of hearing: Postponement may be granted if there are extenuating circumstances. Parties’ requests for continuances shall only be granted when all parties mutually agree to a subsequent specified date, or when the hearing panel chair determines that denying the continuance would deny the requestor a fair hearing. Requests for postponement must be made in writing. Permission can be given by the Chairperson. All parties shall be advised of the date of the rescheduled hearing. (Revised 11/14)
Recording the hearing: The Board shall have a court reporter present at the hearing or shall record the proceeding. Any party may, at the Board’s discretion, record the proceeding or utilize a court reporter at their own expense. If a party utilizes a court reporter and orders a transcript, a copy of the transcription shall be made at the party’s expense and presented to the Professional Standards Administrator. If the Board utilizes a court reporter in lieu of recording, the parties may not be prohibited from making their own recording. Videotaping is not permitted except with the advance express consent of the parties and the panelists. Any and all recording should be conducted in accordance with state law. Copies of any recording or transcription are to be used only for the purpose of appeals or procedural reviews. Appeals and limited procedural reviews shall not be recorded by the Board or the parties. (Revised 11/21)
Method and objective of procedure: The Hearing Panel shall not be bound by the rules of evidence applicable in courts of law, but shall afford all parties a full opportunity to be heard, present witnesses, and offer evidence, subject to its judgment as to relevance.
Parties are strongly encouraged to provide any and all documents and evidence they intend to introduce during the hearing to the other party(ies) and to the association prior to the day of the hearing. Providing documents and evidence in advance can expedite the hearing process and prevent costly, unnecessary continuances. Evidence submitted to the association but not provided to the other party(ies) will be provided to the other party(ies) by the association at the time of submission. Evidence submitted at the time of the hearing will be evaluated for admissibility by the hearing panel. (Revised 11/21)
Due process procedure: (Chairperson's Procedural Guide for the Conduct of an Arbitration Hearing is available in the Code of Ethics and Arbitration Manual.)
The hearing will proceed as follows:
- Chairperson cites authority to hear case and explains reason for hearing.
- The arbitration request will be read into the record.
- The testimony of all parties and witnesses will be sworn or affirmed. All witnesses will be excused from the hearing except while testifying.
- Opening statement first by complainant and then by respondent, briefly explaining the party’s basic position.
- The parties will be given an opportunity to present evidence and testimony on their behalf and they may call witnesses. All parties appearing at a hearing may be called as a witness without advance notice. (Revised 11/14)
- The parties and their legal counsel will be afforded an opportunity to examine and cross-examine all witnesses and parties.
- The panel members may ask questions at any time during the proceedings.
- The Chairperson may exclude any questions which he or she deems irrelevant or argumentative.
- Each side may make a closing statement. The complainant will make the first closing statement and the respondent will make the final closing statement.
- Adjournment of hearing.
- The Hearing Panel will go into executive session to decide the case. (Revised 11/12)
Settlement: Parties are encouraged to settle the dispute any time. At the outset of the hearing, the Hearing Panel Chair should inform the parties that settlement is an option. At any time during the hearing, the parties can ask for a recess in an attempt to reach a settlement agreement. The parties, with the assistance of their respective counsel, if any, will determine the terms of their settlement agreement. (Revised 11/16)
Award in arbitration hearing: The decision of the Hearing Panel in an arbitration proceeding shall be reduced to writing by the panel (setting forth only the amount of the award) and be signed by the Arbitrators or a majority of them, and a copy shall be furnished to each of the parties to the arbitration. A copy also shall be filed with the Professional Standards Administrator of the Board.
Use of legal counsel: A party may be represented in any hearing by legal counsel. However, parties may not refuse to directly respond to requests for information or questions addressed to them by members of the panel except on grounds of self-incrimination, or on other grounds deemed by the panel to be appropriate. In this connection, the panel need not accept the statements of counsel as being the statements of counsel’s client if the panel desires direct testimony. Parties shall be held responsible for the conduct of their counsel. Any effort by counsel to harass, intimidate, coerce, or confuse the panel members or any party to the proceedings, or any action by counsel which is viewed by the panel as disruptive of the proceedings, shall be grounds for exclusion of counsel. The decision to exclude counsel for any of the foregoing reasons shall be the result of a majority vote of the members of the panel and shall be nonappealable. In the event counsel is excluded, the hearing shall be postponed to a date certain not less than fifteen (15) nor more than thirty (30) days from the date of adjournment to enable the party to obtain alternate counsel, provided, however, that such postponement shall not be authorized if it appears to members of the panel that the action of counsel has been undertaken by counsel to obtain a postponement or delay of the hearing.