Powered by Google

Search form

Part 12:Chairperson’s Procedural Guide: Conduct of a Procedural Review Hearing (Arbitration)

Part 12:Chairperson’s Procedural Guide: Conduct of a Procedural Review Hearing (Arbitration)

_______________________________________________________________ Board of REALTORS®

State of ___________________________________________

(Ask the Secretary to make sure that the names of all parties present for the hearing have been added to this Guide and that all the appropriate blanks have been completed. Also note that procedural reviews are not to be recorded.)

(Ask all parties to come into the hearing room.)

Display: Board banner and the American flag

Seating arrangements: See Part Thirteen, Form #A-16 in this Manual for recommended seating arrangements.

Start promptly: Rap gavel to open meeting.

Chairperson’s opening statement: Ladies and gentlemen, I now call this procedural review hearing to order. The professional standards procedures of the __________________ Board of REALTORS® provide for the right to a procedural review of the arbitration hearing procedures used in arbitration hearings. Both the complainant and/or the respondent in an arbitration hearing have the right to request a procedural review. The request for procedural review will be heard by (the Board of Directors) (or) (a panel of Directors appointed by the President) (or) (the Board’s Executive Committee), hereinafter referred to as the Procedural Review Hearing Tribunal.

Basis of this procedural review: The particular matter to be considered by this Procedural Review Hearing Tribunal is a request for procedural review of the arbitration hearing procedures used in an arbitration hearing conducted on ______________________, 20______. The original arbitration Hearing Panel was composed of ________________________,
____________________________________, _________________________________________,
______________________________________________, and was chaired by
______________________. The basis of the original arbitration hearing was a Request and Agreement to Arbitrate filed by ________________________ and ______________________,
the complainant(s), against ____________________________
and ________________________________, the respondent(s), claiming that a dispute arising out of the real estate business existed between the complainant(s) and the respondent(s). The Award of Arbitrators from the original arbitration hearing was as follows:

(Read the Award of Arbitrators [Part Thirteen, Form #A-12 of this Manual].)

Prior to the original arbitration hearing, the arbitration request was reviewed by (the Board’s Grievance Committee) (or) (a panel of the Board’s Grievance Committee members) and referred to the Board’s Professional Standards Committee for a hearing.

Authority: The Procedural Review Hearing Tribunal present here today is a body duly constituted under the authority of the bylaws of the __________________________________ Board of REALTORS®.

Introduction of the Procedural Review Hearing Tribunal: At this time, I would like to introduce the members of this Procedural Review Hearing Tribunal. My name is _____________________, and I will serve as Chairperson. The other members of this Procedural Review Hearing Tribunal are ________________________, _________________________, ________________________, _________________________, ________________________, _________________________, _______________________ and _______________________.

Disqualification: Anyone who was a party to the original arbitration hearing, a member of the Grievance Committee present during the meeting when the arbitration request was reviewed, a member of the original arbitration Hearing Panel, or who was otherwise involved in this matter prior to the procedural review request is disqualified from serving on this Procedural Review Hearing Tribunal. Furthermore, anyone who is related by blood or marriage to any party to the original arbitration hearing, who is an employer, partner, employee, or is associated in business with any of the parties to the original arbitration hearing is also disqualified. I will now ask the members of the Procedural Review Hearing Tribunal if they know of any reason why they should be disqualified.

(If none) The members of the Procedural Review Hearing Tribunal have not indicated any reason why they are not qualified to serve. Although the parties have been previously notified of their right to challenge members of this Procedural Review Hearing Tribunal, I will now ask the parties if they are aware of any reason why any member of this Procedural Review Hearing Tribunal is not qualified to serve.

(If none) The parties have not indicated any reason why any member of this Procedural Review Hearing Tribunal is not qualified to serve.

Additional introductions: Also present at this procedural review hearing is ______________________, the complainant in the original arbitration hearing; ______________________, the respondent in the original arbitration hearing; ________________________, the original Arbitration Hearing Panel Chairperson; and _______________________________, the Secretary for the _____________________________Board of REALTORS®.

(If any attorneys are present, they should be introduced at this time.)
________________________, _________________________, ________________________, and _____________________.

Appeal limitations: In this procedural review hearing we will consider the arguments of _____________________________, hereinafter referred to as the appellant, who filed the Request for Procedural Review. The basis for the procedural review is limited to alleged procedural deficiencies or other irregularities the appellant believes constitute a deprivation of due process (e.g., fraud, coercion, bias, prejudice, evident partiality, etc.). The procedural review is further limited to the basis (bases) set forth in writing in the Request for Procedural Review, which is as follows.

(Read the Request for Procedural Review [Form #A-13 in Part Thirteen of this Manual].)

Outline of procedure: At this time I would like to explain the procedure for this procedural review hearing. First, the appellant will have an opportunity to explain the basis (bases) upon which he/she is requesting that the Award of Arbitrators be overturned. Next, the original arbitration Hearing Panel Chairperson (or a representative from the original panel) will have an opportunity to respond to the allegations raised by the appellant. Then, any of the other parties to the original arbitration hearing will have the opportunity to explain why the Award of Arbitrators should not be overturned. At any time during this proceeding, members of the Procedural Review Hearing Tribunal may ask questions; however, parties have no right of cross-examination. Finally, following the procedural review hearing, the Procedural Review Hearing Tribunal will go into executive session to render a decision. Do any of the parties have any questions regarding the outline of procedure?

(If none) None of the parties has any questions regarding the outline of procedure.

Guidelines: This Procedural Review Hearing Tribunal is not dealing with questions of law and is not governed by the technical rules of evidence which may apply in courts. This Procedural Review Hearing Tribunal will seek to determine all ascertainable and relevant facts pertaining to the matter under consideration to arrive at a peer judgment and decision by the Procedural Review Hearing Tribunal that is fair to all of the parties. After the Procedural Review Hearing Tribunal has heard all of the evidence and testimony, we will go into executive session to render our decision. The decision will be based solely upon the arguments, evidence, and testimony offered during this procedural review hearing. All parties or their representatives to these proceedings will be allowed a full opportunity to be heard on matters relevant to the issue. This Procedural Review Hearing Tribunal may rule at any time during this hearing on the relevance of testimony being given. All parties giving testimony will be asked to swear or affirm that testimony given is the truth to the best of their knowledge. A party may be represented by legal counsel. This Procedural Review Hearing Tribunal need not accept the statements of counsel as being the statements of their clients if it desires direct testimony. Counsel is present to advise and consult with their clients, and to speak for them subject to appropriate rulings or determinations by this Procedural Review Hearing Tribunal. This Procedural Review Hearing Tribunal will countenance no effort by any party or by counsel to any party to harass, intimidate, coerce, or confuse the Procedural Review Hearing Tribunal or any party to the proceedings.

Swearing: At this time I will request that all persons present in the room who expect to testify at this procedural review 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.) Please stand, raise your right hand and, following the question I 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?”

(If yes) All parties have answered in the affirmative. Please be seated.

(And/or if needed)

Affirmation: Please stand, raise your right hand and, following the question I pose, answer in the affirmative if you do so affirm. “Do you affirm that the statements you are about to make at this procedural review hearing are the truth, the whole truth, and nothing but the truth?”

(If yes) All parties have answered in the affirmative. Please be seated.

The procedural review hearing: We shall now proceed with the procedural review hearing.

Presentation by the appellant: At this time, the appellant may explain the basis (bases) upon which he/she is requesting that the Award of Arbitrators be overturned. However, no new evidence shall be received except as such new evidence may bear upon the claim of deprivation of due process.

Rebuttal by the original arbitration Hearing Panel Chairperson: At this time, the original arbitration Hearing Panel Chairperson will have an opportunity to explain why the Award of Arbitrators should be upheld by this Procedural Review Hearing Tribunal.

Testimony of other parties to the original arbitration hearing: At this time, any other parties to the original arbitration hearing will have an opportunity to explain why the Award of Arbitrators should be upheld by the Procedural Review Hearing Tribunal. Any party testifying must restrict his/her discussion to the issues raised in the Request for Procedural Review.

Questions from panel members: The members of this panel are authorized to ask questions at any time during this procedural review.

Confirmation of fairness/opportunity to testify: Do each of you feel that this procedural review hearing has been conducted fairly?

(If yes) All parties to this procedural review hearing have indicated that they feel this procedural review hearing has been conducted fairly.
Have each of you had an adequate opportunity to state why you believe that the original Award of Arbitrators should or should not be upheld by this Procedural Review Hearing Tribunal?

(If yes) The parties have indicated that they have had an adequate opportunity to state why they believe the original Award of Arbitrators should or should not be upheld by this Procedural Review Hearing Tribunal.

Closing statements: The decision of this Procedural Review Hearing Tribunal is final. Before we adjourn this procedural review hearing, all persons present are advised that the final determination of this Procedural Review Hearing Tribunal is considered confidential. Upon final action by this Procedural Review Hearing Tribunal, the Board President shall disseminate to the complainant and the respondent in the original arbitration hearing, the Board of Directors, the Chairperson and members of the original arbitration Hearing Panel, and Board legal counsel such notice of the action as the Board President deems appropriate under the circumstances.

Adjournment: There being no further business to be considered in this procedural review hearing, this portion of the procedural review hearing stands adjourned.

Executive session: The Procedural Review Hearing Tribunal will now go into executive session to render its final decision, which will be based solely on the arguments, evidence, and testimony offered at the procedural review hearing.

Procedural note: The sole issue for the Procedural Review Hearing Tribunal to decide is whether the arbitration procedures utilized in rendering the Award of Arbitrators afforded all parties due process. If the Procedural Review Hearing Tribunal determines that the original arbitration hearing process was defective in any significant way, then the Award of Arbitrators will be invalidated and the matter will be referred to a different arbitration Hearing Panel for a new hearing or, alternatively, the Procedural Review Hearing Tribunal may release the parties from their obligation to arbitrate if it concludes that the Board will be unable to impanel an impartial arbitration Hearing Panel. (Adopted 4/92)


(Revised 11/11)