Part 12: Chairperson’s Procedural Guide: Conduct of an Interboard Arbitration Hearing
Part 12: Chairperson’s Procedural Guide: Conduct of an Interboard Arbitration Hearing
__________________________________________________________ Board of REALTORS®
State of ___________________________________________
(Ask the recording Professional Standards Administrator to make sure that the names of all parties present for the hearing have been added to this Guide and that all appropriate blanks have been completed.)
(Ask all parties [including witnesses] to come into the hearing room.)
Display: Board banner and the American flag
Seating arrangements: See Part Thirteen, Form #A-16 of this Manual for recommended seating arrangements.
Start promptly: Rap gavel to open meeting.
Chairperson’s opening statement and conduct of hearing: Ladies and gentlemen, I now call this hearing to order. Professional Standards Committees are charged with conducting hearings for their respective Boards of REALTORS® in accordance with the procedures as set forth in the Boards’ bylaws in matters concerning alleged unethical conduct by a Board Member or Members, or in the arbitration of business disputes arising out of the real estate business as defined in the bylaws of the respective Boards. The body meeting here is an impartial panel of Professional Standards Committee members who have been selected and called today to ascertain the truth in the particular matter at hand, which is the subject of an interboard arbitration proceeding, and to render a decision on the testimony and evidence presented. It is to be noted that an ethics proceeding is to be clearly distinguished from an arbitration proceeding and the two should be treated as completely separate matters. The particular matter to be considered by this panel at this time is an interboard arbitration proceeding.
The Professional Standards Committee is a body duly constituted under the authority of the bylaws of the respective Boards of REALTORS® whose members have been duly appointed by their Board Presidents and approved by their Boards of Directors. At this time, I would like to introduce the members of this panel.
(1) My name is _______________________________; I am a
member of the ______________________________ Board of REALTORS®, and I will serve as Chairperson of this panel.
(2) The other members of this panel are: _____________________________, a member of the _________________ Board of REALTORS®, and ____________________________, a member of the ___________________ Board of REALTORS®.
(3) Present at this hearing is ___________________________, the complainant, and his/her sales associate ____________________________________.
(If the complainant is accompanied by an attorney, and/or witnesses, they should be introduced at this time.)
_____________________________________, and _______________________________________.
(If the complainant is represented by legal counsel, and/or accompanied by witnesses, confirm that the respondent was notified in advance. If not, ask if there is an objection. If none, have the respondent sign a statement to that effect.)
(4) Also present at this hearing is _______________________, the respondent, and his/her sales associate(s), __________ ______________________________________________.
(If the respondent is accompanied by an attorney and/or witnesses, they should be introduced at this time.)
____________________, and ______________________.
(If the respondent is represented by legal counsel, and/or accompanied by witnesses, confirm that the complainant was notified in advance. If not, ask if there is an objection. If none, have complainant sign a statement to that effect.)
(5) Also present at this hearing is ____________________, the recording Professional Standards Administrator for the ____________________ Board of REALTORS®, and (if appropriate) ___________________, the court reporter present to transcribe these proceedings.
(Or, alternatively: This hearing is being mechanically recorded.)
(If an attorney representing the Board is present, he/she should be introduced at this time.)
The parties are specifically advised that any recording or transcription that may be made of these proceedings can only be used for the purpose of procedural review and any other use, including use in other ethics or arbitration hearings, is expressly prohibited.
Basis of hearing: This hearing is to arbitrate a business dispute arising out of the real estate business in accordance with the request of ____________________________ that he/she be awarded a commission or part of a commission on the sale of __________________________________________________.
The request for arbitration is as follows:
(Read the amount and nature of the dispute into the record.)
Any prior offers of settlement or proposed resolutions of the case, during mediation or otherwise, will not be considered by the Hearing Panel.
However, the parties are encouraged to settle their dispute at any time during or after the hearing. If the parties wish to discuss settlement during the hearing, they may ask for a recess. The parties, with the assistance of their respective counsel, if any, will determine the terms of the settlement agreement. The parties are advised that the arbitration will continue to be processed until formally withdrawn by the complainant.
This panel is not dealing with questions of law, and it is not governed by the rules of evidence which may apply in courts. This panel will seek to determine all ascertainable and relevant facts pertaining to the matter under consideration to arrive at a peer judgment and decision that is fair to all of the parties. The panel is governed and directed by the bylaws of the respective Boards of REALTORS® and the Code of Ethics of the NATIONAL ASSOCIATION OF REALTORS®. The panel determines its own rules of evidence and its own procedures to be followed with objectives of equity and due process. The following are the procedures that will be followed during this hearing.
(1) All parties or their representatives to these proceedings will have a full opportunity to be heard on matters relevant to the issue. The panel may rule at any time during this hearing on the relevance of testimony being given or on questions being directed to any party or their representative or to witnesses providing testimony. All parties and witnesses will be asked to swear or affirm that testimony given is the truth to the best of their knowledge.
(If no legal counsel is present, proceed to paragraph 3.)
(2) A party may be represented by legal counsel. However, no party may 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 other grounds which the panel deems appropriate. In this connection, the panel is not required to accept the statements of counsel as being the statements of their client if the panel desires direct testimony. Counsel is present to advise and consult with their client, and to speak for them subject to appropriate rulings or determinations by the panel. This panel will countenance no effort by any party or by counsel to any party to harass, intimidate, coerce, or confuse the panel members or any party to the proceedings.
(3) The panel may rule at any time on the admissibility of evidence. As Chairperson, I will act as keeper of the evidence introduced at this hearing and mark each with an exhibit identification number or letter and date.
(4) The members of this panel are authorized, individually, to ask questions as they deem pertinent and significant at any time during this hearing. To preserve order, I will rule on questions or testimony by the parties and their representatives, and by witnesses in these proceedings. If deemed necessary, I will consult with the members of the panel and with Board counsel concerning such rulings.
(5) At this time, I request that all persons present in the room who expect to testify at this hearing stand and be sworn or make appropriate affirmation in lieu of being sworn.
(The Chairperson should determine if any of the parties prefer affirmation in lieu of being sworn.)
Swearing: Raise your right hand and, following the question I will pose, answer in the affirmative if you do so swear . . . “Do you swear that the statements you are about to make at this hearing are the truth, the whole truth, and nothing but the truth so help you God?” Let the record show that all parties have answered in the affirmative.
(And/or if needed)
Affirmation: Raise your right hand and, following the question I will pose, answer in the affirmative if you do so affirm “Do you affirm that the testimony you are about to give in this proceeding shall be the truth, the whole truth, and nothing but the truth?” Let the record show that ___________________ has/have answered in the affirmative.
(At this time, the Chairperson should excuse any witnesses and ask them to wait outside until called, and ask the remaining parties to be seated.)
Outline of procedure for hearing: Both the complainant and the respondent were provided with a copy of the Outline of Procedure for an Arbitration Hearing (Part Thirteen, Form #A-10 of this Manual). Did each of you receive the Outline?
(If yes) Let the record show that both the complainant and respondent did receive the Outline.
(If a party responds that he has not received the Outline, the party should be given a copy and asked if he has any objection to proceeding.)
Do you have any questions concerning the Outline of Procedure?
(If none) Let the record show that neither the complainant nor the respondent have any questions concerning the Outline of Procedure for an Arbitration Hearing.
We shall now proceed with the hearing.
Opening statement by parties or attorneys: Each party or the party’s attorney-at-law shall be given an opportunity for an opening statement which shall briefly outline the basic premise of the party’s position. You will have an opportunity to present your entire case at a later time during this hearing.
Presentation by complainant: The complainant will now state his/her case and present any evidence or witnesses that he/she may desire.
Cross-examination by respondent
Questions from panel members
Presentation by respondent: The respondent will now state his/her case and present any evidence or witnesses that he/she may desire.
Cross-examination by complainant
Questions from panel members
Closing statement by complainant: At this time both the complainant and the respondent will be given an opportunity to make a summary or closing statement if they so desire. The complainant’s closing statement will be heard first.
Closing statement by respondent
Closing statement by Panel Chairperson: Do you feel that this hearing has been conducted fairly?
(If yes) Let the record show that both the complainant and the respondent have indicated that they feel this hearing has been conducted fairly.
Have each of you had an adequate opportunity to testify, present evidence and witnesses, and conduct cross-examination?
(If yes) Let the record show that both the complainant and the respondent have indicated that they have had an adequate opportunity to testify, present evidence and witnesses, and conduct cross-examination.
(If any party answers “no,” ask him/her to state any concerns and, if there’s any merit to the concern, take steps to remedy any possible deficiency.)
Confidential nature of hearing: Before we adjourn this hearing, all persons present are advised that the award of this panel is considered confidential. It will be available only to members of this panel, to the parties, to counsel, and staff as required or as otherwise specified in the Code of Ethics and Arbitration Manual. Upon final action by the Hearing Panel in an arbitration proceeding, the decision, when signed by the members of the Hearing Panel (or a majority of them), shall be served upon the parties to the dispute. The parties will be notified of the decision within the required time after this hearing is adjourned. You are reminded that any recording or transcription that may be made of these proceedings can only be used for the purpose of procedural review and any other use, including use in other ethics or arbitration hearings, is expressly prohibited.
Adjournment: There being no further business to be considered in this hearing, this portion of the hearing stands adjourned.
Proceeding following hearing—executive session: (After adjournment, the panel remains in executive session to determine the award, if any. The panel will follow the procedure set forth in the Code of Ethics and Arbitration Manual as to the opportunity for procedural review. Boards should consider having Board counsel review awards prior to issuance. This will serve to protect the Board by minimizing vulnerability to litigation.)