Part Ten, Section 48 — Submission to Arbitration
(a) Submission of a dispute to arbitration by the Board shall consist of signing and delivering to the Secretary either a request or response form provided by the Board (Form#A-1 or #A-2, Request and Agreement to Arbitrate, or Form #A-4, Response and Agreement to Arbitrate) or any other similar writing permitted by law and making the appropriate deposit of $__________ (not to exceed $500).* Agreements to arbitrate are irrevocable except as otherwise provided under state law. (Revised 5/01)
*Where a party(ies) from the same firm is involved in more than one related request for arbitration, and the claims will be consolidated and resolved in a single hearing, no more than one deposit or filing fee may be required of that party(ies). When a REALTOR® requests arbitration to determine which of multiple respondents is entitled to disputed funds, or where a party makes no claim to the disputed funds, that party may not be assessed an arbitration filing fee. (Revised 11/93)
NOTE: The circumstances under which Member Boards may conduct arbitration will vary based upon state arbitration statutes and case law. Member Boards should consult with Board or State Association legal counsel and select the appropriate procedure from those listed below as Options #1, #2, and #3. No arbitration hearing may be held in the absence of the complainant, and no award may be rendered without a hearing on the merits. (Revised 11/91)
In any instance where arbitration has been conducted and an award rendered under Option #2 or #3 of this Section; where the amount requested by the party initiating the arbitration has been awarded; and where the respondent has failed to make the specified deposit, it shall be the responsibility of the respondent to pay an amount equal to the deposit to the Board within ten (10) days of receipt of notice from the Board requesting payment. Where the respondent has not made the deposit and a partial award is made, the respondent shall pay to the Board an amount to be determined by the Hearing Panel that will not exceed the deposit originally made by the complainant. Failure to make such payment on a timely basis, upon receipt of a request from the Board, shall be treated in the manner specified in the Board’s bylaws for failure to satisfy financial obligations to the Board. (Adopted 5/88)
(b) Arbitration shall not proceed unless the signed Response and Agreement Form (Part Thirteen, Form #A-4) and deposit amount have been received from the respondent and the respondent appears and takes part in the hearing. (Revised 11/05)
(b) In the event the respondent fails to sign and return the Response and Agreement Form (Part Thirteen, Form#A-4), or fails or refuses to make the required deposit, arbitration may proceed, and a valid award may be rendered if the respondent appears and takes part in the hearing.
NOTE: This option may be adopted only where state law permits arbitration to proceed in the absence of signed arbitration agreements. The advice of legal counsel should be obtained to determine whether Board membership creates an enforceable obligation to arbitrate under the circumstances established in Part Ten, Section 44 of this Manual.
(b) In the event the respondent fails or refuses to sign the Response and Agreement Form (Part Thirteen, Form#A-4), fails or refuses to make the required deposit, or fails or refuses to take part in the arbitration hearing, the arbitration hearing may be scheduled and conducted in the absence of the respondent.
NOTE: Arbitration in the absence of a respondent may take place only where permitted by state statute or case law. In such instances, the Board should ensure that all preliminary procedural steps, including the provision of adequate prior notice, are complied with. In the event a respondent fails to appear, it is strongly recommended that an attempt be made to determine whether the failure to appear is because of the respondent’s refusal to arbitrate or due to unforeseen circumstances. (Revised 11/91)
Where arbitration takes place in a respondent’s absence, the respondent is still entitled to be represented by legal counsel. Counsel may make opening and closing statements; call witnesses; cross-examine witnesses called by other parties; and introduce affidavits, documents, and other admissible relevant evidence. Counsel may not testify to events and facts of which counsel has no firsthand knowledge. Hearing Panels should be instructed by the Chair that counsel’s arguments do not constitute testimony. (Adopted 11/98)
Associations are encouraged, but not required, to refund part or all of the parties’ deposits in cases where disputes are resolved through mediation. Associations are also encouraged to adopt and follow a consistent policy regarding the disposition of arbitration disputes. (Adopted 5/10)