Effective May 15, 2002

 

 

AMERICAN DISPUTE RESOLUTION CENTER, INC.

RULES OF CONSTRUCTION ARBITRATION

 

 

 

 

1.         RULES

The Rules set forth herein shall be binding upon the parties to a dispute submitting to arbitration before the American Dispute Resolution Center, Inc. (hereinafter "ADR Center"), except as the parties may otherwise agree.  These Rules may be modified from time to time without notice by ADR Center, however the Rules in effect as of the date of commencement of an arbitration shall remain in effect as to that arbitration, unless the parties agree to adopt the modified Rules.

 

2.         INITIATION

Upon the parties initiating an arbitration pursuant to these Rules, ADR Center shall assign an Case Manager to administer the arbitration proceeding.  The arbitration is commenced upon an agreement of the parties to arbitrate, either by contract or by mutual agreement, and the filing of a complaint by the claimant.  The parties shall sign an agreement to be bound by the Rules hereunder and to agree to the fee schedule of  ADR Center.  The parties may modify, add or remove claims and/or counterclaims during the pendency of the matter by filing such in writing with the ADR Center Case Manager not less than seven calendar days prior to the first hearing.  Once the hearings have commenced, any such requests for modifications, additions or deletions shall be granted only upon the arbitrator's consideration of a written motion in which the basis for the modification is fully set forth and after the other party has had an opportunity to respond.

 

3.         ANSWER

The respondent may, in its discretion, choose to file an answer and/or  counterclaim, but must do so within fourteen calendar days of receipt of ADRC’s confirmation of the complaint, unless said respondent files a request for a seven calendar day extension of time to respond within the initial fourteen day period.  If no answer is filed by the stated time, such shall be treated as a denial of the claim.

 

4.         LOCALE

The site of the hearing shall be as required by contract or as the parties may agree.  Should no contract requirement exist and should the parties be unable to agree, the Case Manager shall have the authority to set the hearing site, such decision to be final and binding.  Alternatively, the parties may agree to waive oral hearing and make a written submission to the arbitrator.

 

5.         ARBITRATOR APPOINTMENT

The Case Manager shall provide the parties with a list of arbitrators from which to select an arbitration panel, and any arbitrator who is not acceptable to a party shall be stricken.  The parties shall return such listing to the Case Manager within fourteen calendar days.  The Case Manager shall thereafter select the arbitration panel from the remaining acceptable names.  Should the parties be unable to agree upon an arbitrator, the Case Manager shall appoint an arbitrator(s). Alternatively, the parties may agree to submit the matter to an arbitrator(s) of the parties own choosing.  Once selected, the arbitrator shall serve unless a conflict of interest exists.  Should an arbitrator resign during the pendency of a hearing, the Case Manager shall appoint a substitute arbitrator.  If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable.

 

6.         NUMBER OF ARBITRATORS

Arbitration panels shall consist of one arbitrator in any claim and counterclaim not exceeding $250,000.00 in the aggregate, and shall consist of three arbitrators in all other claims, except as the parties may otherwise agree.  Once the arbitration panel is selected, the panel shall have authority to conduct the hearing and render the award.  At no time shall either party or representative thereof contact an arbitrator directly during the pendency of the case.

 

7.         DIRECT APPOINTMENT BY PARTIES

If the parties’ agreement identifies a particular arbitrator or a method of appointing an arbitrator, such will be honored.  If the parties’ agreement specifies a period of time by which an arbitrator shall be appointed by a party, and any party fails to comply with such time period, ADR Center shall be authorized to appoint an arbitrator(s).  If no time is specified in the parties’ agreement, ADR Center shall notify the appropriate party to appoint an arbitrator within fifteen days.  If no arbitrator is appointed within that time, ADR Center shall be authorized to appoint an arbitrator.

 

Once an arbitrator is selected, the arbitrator shall have the authority to conduct the hearing and render the award.  At no time shall either party or representative thereof contact an arbitrator directly during the pendency of the case.

 

8.        APPOINTMENT OF NEUTRAL ARBITRATOR BY PARTY-APPOINTED ARBITRATORS

If the parties have appointed their arbitrators in accordance with Section 7 of these Rules, and have authorized the appointed arbitrators to select a neutral arbitrator within a specified time and no arbitrator is appointed within that time, ADRC shall be authorized to appoint the neutral arbitrator to serve as the chairman. If no time is specified in the parties’ agreement to select the neutral arbitrator and the neutral arbitrator is not selected within fifteen days from the date of the appointment of the last party-appointed arbitrator, ADRC shall be authorized to appoint the neutral arbitrator to serve as the chairman.

 

If the parties have agreed that the party-appointed arbitrators shall appoint a neutral from ADRC’s panel of commercial arbitrators, as set forth in Section 5 of these Rules, then such will apply.

 

9.       REQUEST FOR ADMINISTRATIVE CONFERENCE

The parties may initiate an administrative conference with the Case Manager and/or arbitration panel prior to the initial hearing.  The Case Manager and/or arbitration panel may also, in their discretion, initiate such a conference.  The parties shall act in good faith and seek agreement as to exchanges of discovery, scheduling, issues and documents not in dispute, and all such procedural matters as may facilitate and expedite the process.  All matters not agreed to by the parties or upon which issues or challenges have arisen, including without limitation where discovery requests are not complied with in a timely manner under these Rules, shall, upon written motion, be ruled upon by the arbitration panel, whose decision shall be binding.  The arbitration panel may rule on such motion on the papers or may require oral argument, in its discretion. The Case Manager shall have the authority to act hereunder on those issues arising prior to the appointment of an arbitration panel; the arbitration panel shall have the authority to act hereunder once selected.

 

10.       OATH AND DISCLOSURE

A notice of arbitration appointment shall be mailed to the arbitrator for signature and notarization and returned to ADRC prior to the commencement of the first hearing.  The arbitrator must immediately disclose any circumstances that may affect his or her impartiality, and ADRC will advise the parties of any such disclosure.  If any one party files an objection to the continued service of the neutral arbitrator, ADRC shall be authorized to determine whether the arbitrator will be disqualified and the parties will be informed of such decision, which shall be binding.

 

11.              DATE, TIME AND PLACE OF HEARING

ADR Center shall endeavor to administer and schedule hearings as swiftly as practicable, and the parties agree to exercise good faith in cooperating with and responding to requests from the Case Manager.  Any parties' failure to do so may result in the arbitrator ordering the scheduling of hearings.

 

12.        REPRESENTATION

The parties hereto may be represented by legal counsel or an authorized representative.  Such person must be identified to the Case Manager not later than seven calendar days prior to the commencement of the initial hearing.

 

13.        STENOGRAPHIC RECORD

Either party may request a stenographic record at its expense and for its sole use, however such shall not be the official record of the case and shall not be submitted to the arbitration panel for its use unless the arbitration panel determines that such record, or a portion thereof, shall be considered the official record, in which that portion of the record so designated shall be made available to the other party.  Alternatively, the parties may agree to a joint stenographic record and to split the cost thereof.  In that event, the parties shall arrange for a copy of the record to be provided to the arbitration panel as the official record of the proceeding. Nothing herein shall prevent a party who has arranged for a stenographic record at its sole or joint expense from introducing a portion of such record as may be relevant to its direct examination or cross-examination of a witness, or as an exhibit.  In such cases, that portion of the record shall be made available to the other party and to the arbitration panel.

 

14.         REQUEST FOR POSTPONEMENTS

An arbitrator may grant the postponement of a hearing upon the request of a party for good cause shown or upon his or her own initiative, and shall grant a request for postponement when the parties agree thereto.

 

15.        ARBITRATION IN THE ABSENCE OF A PARTY OR REPRESENTATIVE

If either party or representative fails to appear or request a postponement after due notice of the hearing, the hearing will proceed ex-parte and the arbitrator shall have the authority to render an award.

 

16.        EVIDENCE

The claimant shall present evidence to support its demand and claim through the use of direct examination of witnesses.  The respondent shall have the right to cross examination of claimant's witnesses.  The respondent shall thereupon present evidence to support its position and any counterclaim.  The claimant shall have the right to cross examine respondent's witnesses.  Redirect and recross shall be permitted in the arbitrator's discretion.  All witnesses’ testimony shall be under oath.  Opening statements, closing statements and post-hearing briefs may be requested by the parties, or as the arbitration panel may require.  Requests for a subpoena may be submitted to the arbitration panel and/or may be sought in accordance with applicable state law.  The arbitration panel shall have broad discretion throughout the proceedings as to rulings on  procedural matters, objections, admissibility, relevance, materiality,  requests for sanctions and any other matters which may arise.  No settlement offers or discussions shall be offered or admitted.

 

17.        CLOSE OF HEARINGS

Once the hearings are completed, any briefs received, and all fees paid, the hearing shall be considered closed, and a decision shall be rendered within 30 days, unless for good cause.

 

18.        REOPENING OF HEARINGS

Any party may move to reopen the hearings, or the arbitrator(s) may reopen the hearings on their own initiative, at any time prior to the final award being rendered.

 

19.        REQUEST FOR EXTENSIONS OF TIME

The parties, by mutual agreement, may modify any time period.

 

20.        TIME AND FORM OF AWARD

The award shall be in the form of a concise written statement and shall consist of a detailed breakdown of the claims.  The award shall be fully binding upon the parties, except that enforcement may be limited pursuant to applicable federal and state law.  In the case of a three person arbitration panel, a majority decision shall be required.  The arbitrator(s) may grant any award, ruling, remedy or relief as the arbitrator(s) deems appropriate in accordance with applicable state law. The entire proceeding and award shall be confidential. 

 

21.        AWARD UPON SETTLEMENT

The parties may, at any time, agree to seek mediation from ADR Center, in which event the arbitration proceeding shall be suspended.  No arbitrator shall also serve as mediator in the same case.  Agreement reached by the parties at any time prior to the issuance of a final award shall result in the arbitrator issuing a consent award and in termination of the matter.  The parties may, at any time prior to the close of the hearings, agree to minimum and maximum amounts to be awarded ("high-low") or to "final offer" or other arbitration options.

 

22.       JUDICIAL PROCEEDINGS

Upon written request of a party, ADRC will furnish to such party, at its expense, any certification of documents in its possession that may be required in a judicial proceeding relating to the arbitration.  Neither ADRC, its officers, directors, employees or any arbitrator is a necessary party in any judicial proceeding, nor shall any person or entity be liable in any way whatsoever to any party, person or entity for act or omission arising under or in connection with any arbitration conducted under these Rules.

 

23.        INTERPRETATION/APPLICATION OF RULES

The arbitator shall have the authority to interpret and apply these Rules.  In the case of a three person panel, a majority decision shall be required.  If a majority decision is unobtainable, ADRC will make the final determination.

 

 

FEES AND COSTS

 

The parties agree to pay those fees, costs, and expenses established by ADR Center in its Fee Schedule in effect at the time a case is submitted for arbitration.  In addition, the parties agree to pay those fees established by each arbitrator, as established prior to his or her selection.   The arbitrator may also charge for participation in administrative conferences, rulings on motions outside of hearings, study time in considering and rendering the award, and for other time spent outside of  hearings, as well as charge for reimbursement of travel and other reasonable expenses related to the case.

 

Upon submission of a matter to ADR Center, the filing and hearing fees shall be calculated and the amount of arbitrator fees will be estimated based upon the anticipated number of hearing days.  The parties shall each pay their own filing fee, based upon the amount of their respective claims or counterclaims, and hearing fees, and shall split equally all additional costs and fees, including but not limited to arbitrator(s) fees and room rental fees, unless required otherwise by contract or by agreement of the parties.  The parties shall pay the amount so calculated to ADR Center upon receipt, and prior to the commencement of the first hearing.  Any additional fees due, resulting from additional hearing days, amended claims or counterclaims, or otherwise, become immediately due and payable.  ADR Center reserves the right to suspend the hearings in the event of non-payment. No awards will be rendered until all fees, costs and expenses are paid in full.

 

In the event that the final amount due for arbitrator fees, room rental fees, and other estimated amounts is less than that estimated and prepaid, such unused amounts shall be refunded to the applicable party, in accordance with the final award.

 

Hearing postponements less than 24 hours prior to the scheduled time shall result in the cancelling party being responsible for payment of  the entire hearing fee for that session and for payment of any other postponement fees, including but not limited to room rental fees.

 

All amounts paid as filing fees are nonrefundable.

 

 

 

Effective May 15, 2002

 

AMERICAN DISPUTE RESOLUTION CENTER, INC.

FEE SCHEDULE

 

 

1.  FILING FEE

 

The filing fees set forth herein are based upon the amount of each parties' initial claim and counterclaim, respectively.  Such fees may be increased or decreased as the parties amend or modify their claims or amounts in controversy during the pendency of the case.  The filing fees herein may also be subject to increase should the demand or counterclaim contain significant non-monetary claims or requests for awards, in the discretion of the American Dispute Resolution Center, Inc. ("ADR Center"), based upon the facts, nature and the significance of such claims.  Where the claim or counterclaim seeks a non-monetary award in its entirety, or where no amount can be stated at the time of filing, the initial filing fee shall be not less than $2,500.00, in the ADR Center's discretion, based upon the facts, nature and the significance of such claims.

 

            CLAIM                                                            FILING FEE

 

            $1 - $50,000                                                    $   750

            $50,001 - $100,000                                         $1,500

            $100,001 - $250,000                                       $2,500

            $250,001 - $500,000                                       $5,000

            $500,001 - $1,000,000                                    $7,500

            $1,000,001 - $5,000,000                                 $10,000

            $5,000,001 - $10,000,000                               $15,000

            $10,000,000 - $20,000,000                             $20,000

            over $20,000,000                                            $20,000 plus .05% of amount

                                                                                         exceeding $20,000,000

 

 

2.  HEARING FEE

 

A hearing fee shall be assessed in the amount of $200.00 per party per hearing day. 

 

3.  ARBITRATOR'S FEE

 

Arbitrator fees shall be charged in accordance with each arbitrator's fee schedule, as he or she may establish from time to time.  Arbitrators are independent contractors, not employed by ADR Center.  The arbitrator may also charge on an hourly or per diem basis for participation in administrative conferences, rulings on motions outside of hearings, study time in considering and rendering the award, and for other time spent outside of  hearings, as well as charge for reimbursement of travel and other reasonable expenses related to the case.

 

4.  MISCELLANEOUS EXPENSES

 

Hearing rooms are available on a rental basis at rates of $100.00 per hearing day, on-site, or at such rates as may be established by third parties, off-site.  ADR Center reserves the right to charge for overnight mail, and for photocopies, postage, telephone conferencing and other expenses and disbursements beyond those of an incidental nature.  Postponement fees and cancellation fees are as set forth in the American Dispute Resolution Center, Inc.'s Rules of Arbitration.