ARBITRATION DEFINITIONS

1. DEFINITIONS

The following list defines keywords as they are used in these Rules.

• Arbitration is a process in which two or more parties agree to let an impartial person or panel decide their dispute.

• Arbitrator refers to the individual
  or panel selected to conduct your arbitration and make a decision in your dispute. Any action taken or decision made by a panel shall be by majority vote.

• MBM refers to the Miami Beach Mediation that is administering the arbitration.

• Days refers to calendar days.

• Decision refers to the written document signed by the arbitrator and mailed to the parties.

• Parties refers to a business and its customer who have agreed in writing to arbitrate future disputes through MBM or under MBM binding rules.

• Shall and must are mandatory; may is discretionary.

• You refers to one or both of the parties.

 

2. SCOPE OF MBM ARBITRATION

These Rules apply to any dispute that the parties are required to arbitrate under a written agreement, signed by the parties prior to the time that the dispute arose, in which the parties have agreed to arbitrate future disputes through MBM or under MBM binding rules.

The arbitrator shall decide any dispute about whether a particular issue falls within the parties’ arbitration agreement.

 

3. REMEDIES

The arbitrator may award any remedy that is permitted under applicable but no more than $8,000 provided; however, that the arbitrator may not award any remedies that the parties have agreed in writing may not be awarded in arbitration.

 

4. FEES

MBM fees are determined according to the fee schedule listed on this website. Fees are paid to handling the arbitration and the process for requesting a waiver or deferral of such fees in cases of hardship. MBM may decline to schedule an arbitration hearing if the parties do not pay administration fees when due.

 

5. DEMAND FOR ARBITRATION

In order to initiate arbitration, a party shall submit to MBM a written demand for arbitration that includes the following:

• The name and address of the other party;

• A concise statement of the issues to be arbitrated;

• A statement of the remedies sought in arbitration and

• A copy of any written agreement between the parties to arbitrate disputes under MBM binding rules.

• Unless otherwise provided by an agreement between the parties, The demand for arbitration must be received by MBM within the statute of limitations that would otherwise apply to a judicial action relating to the claim.

 

6. ANSWER AND COUNTERCLAIM

• A MBM shall send the written demand for arbitration to the other party, who may submit a concise answer and a counterclaim in response. A counterclaim shall include:

• A concise statement of the issues to be arbitrated; and

• A statement of the remedies sought in arbitration.

• Any answer and/or counterclaim must be sent to MBM, with a copy to the other party, within 14 days after receipt of the demand for arbitration. MBM may, for good cause, extend this time period.

• If a counterclaim is filed, the party against whom the counterclaim is

• filed may submit a concise answer to the counterclaim. The answer to the counterclaim must be sent to MBM, with a copy to the other party, within 14 days after receipt of the counterclaim. MBM may, for good cause, extend this time period.

• It is not required that the parties submit an answer to a demand for arbitration or a counterclaim. If a party does not submit an answer, that party will be deemed to have denied all of the claims made by the other party.

 

7. AMENDING THE DEMAND FOR ARBITRATION OR COUNTERCLAIM

At any time prior to the scheduling of the hearing, a party may amend in writing that party’s demand for arbitration, answer, or counterclaim.

Once the hearing has been scheduled, amendments to a party’s demand for arbitration or counterclaim may only be made at the discretion of the arbitrator.

 

8. SELECTING YOUR ARBITRATOR

MBM shall select the arbitrator in a procedure designed to avoid any conflict of interest and to provide the parties with an impartial arbitrator to hear their case. MBM maintains a pool of qualified, experienced arbitrators. MBM shall select the arbitrator, or arbitrators if applicable. MBM shall inform the arbitrator(s) of the identities of the parties and attorneys, if any. If an arbitrator finds that he or she has a conflict of interest with any party or attorney, the arbitrator(s) shall recuse himself or herself.

 

At MBM’s option, or by agreement of the parties or when required by law, MBM may appoint a panel of three arbitrators. MBM shall determine which arbitrator will serve as the chair of the panel to preside over the hearing. MBM may use variations of this selection process, provided that the alternative procedure shall also result in the appointment of an impartial arbitrator.

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9. QUALIFYING THE ARBITRATOR

The arbitrator shall sign an oath pledging to make an impartial decision in your dispute. If the arbitrator believes that he or she cannot make an impartial decision, the arbitrator shall refuse to serve. If a financial, competitive, professional, family or social relationship exists between the arbitrator and one of the parties (even if the arbitrator believes the relationship is so minor as to have no effect on the decision), it shall be revealed to all parties, and you may decide that this arbitrator should not serve in your case. MBM reserves the right to reject an arbitrator for any reason that it believes will affect the credibility of the arbitration process.

 

10. COMMUNICATING WITH THE ARBITRATOR

You or anyone representing you shall not communicate in any way with the arbitrator about your dispute except a) at an inspection or hearing for which the other party has received notice but does not appear, or b) when all other parties are present or have given their written permission.

All other communication with the arbitrator must be sent through MBM. Violation of this rule may result in your case being discontinued.

 

11. WHO MAY PRESENT YOUR CASE?

You may present your own case or have someone represent you.

If your representative is a lawyer, you must give the lawyer’s name and address to MBM at least 21 days before the hearing. MBM shall notify the other parties to give them an opportunity to obtain a lawyer if they want. Your failure to give MBM advance notice of legal representation may result in a rescheduling of your hearing.

 

12. HEARING NOTICE

MBM shall set a date, time (during normal business hours) and place for your arbitration hearing. The hearing will be set with due regard for the schedule of the parties and the arbitrator. Notice of the date, time and place of the hearing will

be sent to you at least 10 days in advance of the hearing unless the parties agree otherwise.

 

Contact MBM immediately if you object to the date, time or place stated in your notice. If an unforeseen emergency arises that prevents you from attending a hearing, call MBM before the scheduled hearing time. The arbitrator shall decide whether to reschedule the arbitration hearing
or maintain the current hearing date permitting the absent party to present the case in accordance with Rule 14. To the extent practical, MBM will arrange for the hearing to be held at a MBM location convenient to the customer. MBM shall make the final decision as to the date, time and place for the arbitration hearing.

 

13. MANNER IN WHICH THE HEARING IS CONDUCTED

Most arbitrations involve in-person hearings. However, MBM, at a party’s request or at MBM’s option, may arrange to have one or both parties participate by telephone, in writing, or by electronic communication.

 

14. YOUR ABSENCE FROM THE HEARING

If one party does not attend a hearing after receiving proper notice from MBM, the arbitrator shall proceed with the hearing and receive evidence from the other party. One party’s absence will not result in an automatic decision against that party. The party who did not attend the hearing shall be given the opportunity to present its position in writing within time limits set by MBM. Any written testimony will be sent to other party for comments. If the absent party does not submit its position within the specified time limits, the arbitrator shall make a decision without that party’s position.

 

15. ATTENDANCE AT HEARING

MBM staff may attend the hearing in an administrative capacity. The parties, any representatives, and their witnesses may attend the hearing, although the arbitrator may determine that one or more non-party witnesses should be present in the hearing room only while that witness is giving testimony.

 

For any observer to attend a hearing, MBM will first determine that reasonable accommodations exist and then make sure that the parties and the arbitrator have no objection to the presence of an observer. If there is room and no objection, the observer shall be permitted to attend the hearing subject to MBM’s directions regarding proper conduct.

 

16. CAMERAS AND RECORDING DEVICES

Unless there is approval of all parties and the arbitrator, no one is permitted to bring cameras, lights, recording devices or any other equipment into the hearing. However, MBM may make an audio recording of the hearing if requested by the arbitrator, and any such audio recording may only be used by the arbitrator for the sole purpose of assisting the arbitrator in writing his/ her decision and reasons, or by MBM for training and administrative purposes.

 

17. INSPECTION BY THE ARBITRATOR

The arbitrator may request an inspection of the product or service involved in your dispute.

If possible, the inspection will be performed as part of the hearing; otherwise, the inspection will be scheduled for a later date and all parties will receive at least three days notice unless such notice
is waived by all parties. In accordance with MBM’s arbitration fee schedule, in some cases an inspection by the arbitrator may incur additional costs to the parties.

 

18. TECHNICAL EXPERTS

At the request of the arbitrator, MBM shall make reasonable efforts to obtain a volunteer impartial technical expert to inspect the product involved or the service performed. If MBM is unable to obtain a volunteer technical expert, MBM shall inform the parties and may give them the opportunity to incur the additional cost of a compensated technical expert.

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The expert’s findings shall be presented in writing or in person, at MBM’s option, either before, during or after the hearing. In any case, you shall have an opportunity to evaluate and comment on the qualifications and findings of the expert.

You also have the right to have your own technical expert serve as a witness at your own expense.

 

19. SUBPOENAS

You may send MBM a request that the arbitrator subpoena witnesses or evidence that are relevant to your case. Any request shall include a statement as to why the witness or evidence is relevant, and why you believe a subpoena is necessary. If
the arbitrator agrees with your request, a subpoena shall be signed by the arbitrator.

 

The party requesting a subpoena shall be responsible for serving the subpoena, including any expenses involved, and also for enforcement of the subpoena in court if necessary. MBM and the arbitrator do not have power to enforce a subpoena, but the arbitrator may consider any failure to produce subpoenaed evidence in the decision.

 

20. PRE-HEARING EXCHANGE OF INFORMATION

The arbitrator, at his or her discretion, may direct that the parties exchange documents or other information prior to the hearing. A copy of any such documents or information shall also be sent to MBM.

 

21. OATH OF PARTICIPANTS

You and your witnesses shall be placed under oath at the hearing by the arbitrator or MBM staff administering the hearing.

 

22. HEARING PROCEDURES

The arbitrator shall decide on the order and the procedures to follow for you to present your side of the dispute.

You shall be given an opportunity to make a personal presentation of your case, and you may present witnesses and evidence in support of your case. You shall also be given the opportunity to question the other parties, their witnesses and their evidence.

 

After everyone has presented his or her case, each party shall be given the opportunity to make a closing statement. In accordance with MBM’s arbitration fee schedule, initial fees and costs may cover a limited hearing time, and additional time may incur additional costs to the parties.

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If the arbitrator determines that additional information is necessary in order to make a fair decision, the arbitrator may direct that this additional evidence be submitted at a subsequent hearing or in any manner deemed appropriate by the arbitrator. If the arbitrator directs that written evidence be submitted after the initial hearing, the evidence shall be sent to MBM within the time frame specified by the arbitrator. MBM shall send a copy to the other party and solicit a response. Both the written evidence and any response shall be submitted by MBM to the arbitrator.

 

23. ADMISSION OF EVIDENCE AT HEARING

You may present your case without being restricted by courtroom rules of evidence. However, you should be sure your evidence is relevant to your case. The arbitrator may limit your presentation if it is repetitious or irrelevant.

 

24. WRITTEN STATEMENTS/ DOCUMENTS

If you have a witness who cannot attend the hearing, you may present that person’s written statement to the arbitrator. You must make a copy for the other party to read and use for response. If you present your case by telephone, you should submit to MBM at least seven days before your hearing any written documents on which you will rely. MBM will provide these documents to the other party before the hearing.

 

25. ADMISSION OF EVIDENCE AFTER INITIAL HEARING

During the hearing, you may ask the arbitrator to give you a reasonable number of days to respond to evidence presented by the other party at the hearing. The arbitrator may grant your request at his or her discretion. If granted, MBM shall send your response to the other party for comment and then forward all information to the arbitrator. 

 

Before a decision is made, an arbitrator may schedule new or additional hearings or otherwise request new or additional evidence to get all possible facts relating to your dispute. Before a decision is made, you may send MBM new information that was impossible to present at your original hearing and request that it be considered. MBM shall send it to the other parties for their response and then forward the information and any response to the arbitrator.

 

After the arbitrator has made a decision in your case, no more arguments or evidence may be presented, even if newly discovered or not available at the time of the hearing.

 

26. CLOSING THE HEARING

The arbitrator shall close the hearing when he or she determines that the parties
have had sufficient opportunity to present all relevant evidence. The arbitrator will normally render a decision within five days after the hearing is closed.

 

27. SETTLEMENT

If all parties voluntarily decide to settle the dispute before the hearing, the settlement will end the dispute and no hearing will be held.

If a voluntary settlement is reached during the hearing, the arbitrator shall include the settlement in a final or interim consent decision. If a settlement is reached after the hearing but before the arbitrator’s final decision, be sure to notify MBM at once.

 

28. TIME LIMITS

MBM shall make reasonable efforts to obtain a resolution of the dispute within 60 days, unless state or federal law provides otherwise. MBM or the arbitrator may extend this time at their sole discretion.

 

29. THE DECISION

A. When the arbitrator has reached a decision in your case, MBM shall send to all parties a written decision accompanied by the arbitrator’s brief statement of reasons for the decision. MBM will not read a decision to you over the phone.

 

A. Scope of decision

A decision shall be one that: the arbitrator considers fair; is limited to the issues raised in the demand for arbitration and any counterclaim; and

falls within the scope of these Rules. Unless otherwise provided by agreement of the parties, the arbitrator is not bound to apply legal principles in reaching what the arbitrator considers to be a fair resolution of the dispute.

 

The decision may order an action to be performed, money to be paid, or a combination of these remedies. The arbitrator may award all or part of what you seek or may decide to award no payment or performance at all.

 

B. Types of decisions

The arbitrator shall render either a final or an interim decision.

If the arbitrator renders a final decision, the arbitrator has no further authority over the decision unless a valid request is made pursuant to Rule 28(C), Clarifying the decision; Rule 28(D), Correcting the decision or reasons for decision; or Rule 28(E), Decision is impossible to perform or to perform timely.

 

An interim decision may be written when the decision requires some action to be taken. If the arbitrator renders an interim decision, the arbitrator maintains continuing authority over the execution of the decision in accordance with the specific terms set out in the decision.

 

An interim decision shall state a time within which the consumer must notify MBM if the action ordered in the interim decision was not performed or was performed unsatisfactorily. If an interim decision has been rendered and a reconvening is requested in accordance with the terms
of the decision, MBM shall schedule a further hearing. In addition to the evidence presented at that hearing, the arbitrator may request additional evidence from the parties or from an impartial technical expert. The arbitrator will normally render a decision within five days after the hearing is closed.

 

C. Clarifying the decision

You may request that the arbitrator clarify a decision if you do not understand the decision, or if you and the other parties disagree about the specific action required by the decision. Requests for clarification must be in writing and must be received by MBM prior to the time that performance is required under the decision.

 

MBM will not accept a clarification request that attempts only to reargue your case or that is based solely upon your disagreement or disappointment with the decision.

 

MBM shall have sole discretion to determine if your written statement is an appropriate request for clarification of the decision. MBM shall send the request to the other parties, solicit their views, and send the request and any response to the arbitrator. The arbitrator may either clarify the decision or reject the request for clarification and let the decision stand as written. You may not ask the arbitrator to clarify the reasons for the decision.

 

D. Correcting the decision or reasons for decision You may request correction of the decision or the reasons for decision if you believe the decision or reasons contain a mistake of fact, a miscalculation of figures, or exceed the arbitrator’s authority. Requests for correction of a decision or reasons must be in writing and must be received by MBM prior to the time that performance is required under the decision.

 

A mistake of fact is not a conclusion of the arbitrator with which you disagree; it is a true error in such things as a date, time, place or name, and may justify a correction only if it concerns the essence of the decision.

 

A miscalculation of figures is not a dollar figure you consider to be unfair; it is a mathematical error.

The arbitrator’s authority is limited to the scope of these Rules.

 

MBM will not accept a correction request that attempts only to reargue your case or that is based solely upon your disagreement or disappointment with the decision.

 

If your written statement to MBM is an appropriate request for correction, MBM shall send the request to the other parties, solicit their views, and send the request and any response to the arbitrator. The arbitrator may either correct the decision or reasons or reject the request for correction and let the decision or reasons stand as written.

 

E. Decision is impossible to perform or to perform timely unless otherwise specified in the decision, the time for performance shall generally be

no longer than 30 days from the date MBM forwards the award to the parties. If you believe in good faith you cannot perform the arbitrator’s decision at all or within the established time limit, you should immediately inform MBM in writing. MBM shall process your submission in the same manner as a request for correction.

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The arbitrator may request additional evidence, request another hearing, or do anything necessary to confirm or deny your claim of impossibility of performance. If the arbitrator confirms such impossibility, the original decision may then be changed to include any remedy falling within the scope of these Rules.

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If a party has exceeded the time for performance, the other party should notify MBM in writing.

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F. Suspending the time to perform

If you submit to MBM a written statement relating to correction, clarification or impossibility of performing the decision, the time performance of the decision shall be suspended until the issue is resolved by the arbitrator or by MBM.

 

G. After decision is issued

Once a decision in your case has been issued:

The parties will be legally bound to abide by the decision and must comply with the decision’s terms (subject to modification/correction under these Rules or to any limited right of review that may be provided by state or federal law).

 

Each party gives up any right to sue the other party in court on any claim that has been resolved at the arbitration hearing, unless a party fails to perform according to the arbitrator’s decision. If a party fails to perform the decision, notify MBM and it will try to resolve the matter. In addition, you may have the right to enforce the decision in court or pursue other legal remedies under state or federal law.

 

H. Verification of performance

All parties must do what the decision requires within the time limits set by the arbitrator.

 

Unless otherwise stated in the decision, the time for performance shall begin when you receive the decision. Approximately two weeks after the performance date, MBM shall contact the parties to see if the decision has been made.

 

30. TIMELY OBJECTIONS

Any failure to follow these Rules that may significantly affect the independence, impartiality or fairness of the arbitration process must be raised with MBM at the earliest opportunity. MBM shall make a final decision on the appropriate action to be taken if MBM determines that a failure to follow these Rules has significantly affected the independence, impartiality or fairness of the arbitration process.

 

31. CHANGE OF TIME

You and the other parties to the arbitration may jointly agree in writing to change any period of time stated in these Rules.

 

32. CONFIDENTIALITY

The dispute resolution process and any records of that process are private and confidential.If the dispute originated as a complaint filed with MBM, MBM may include in its report on the business an indication of the business’s failure to arbitrate or to perform an award in your individual case, excluding personally identifying information about any individual. Otherwise, MBM shall not release the terms of the arbitration decision to any person or group that is not a party to the arbitration unless all parties agree or unless such release is required by law or pertinent to judicial or governmental administrative proceedings.

 

33. JUDICIAL PROCEEDINGS/ EXCLUSION OF LIABILITY

In submitting to arbitration under these Rules, the parties agree that, other than for purposes of authentication by staff of MBM, MBM and the arbitrator shall not be subpoenaed by either party in any subsequent legal proceeding. The parties further agree that MBM (including its staff), Council of Miami Beach Mediations (including its staff) and/or the arbitrator shall not be liable for any act or omission in connection with your arbitration.

 

34. INTERPRETATION OF RULES/RIGHT TO DISCONTINUE ARBITRATION

MBM shall make the final decision on procedural questions and on any other question concerning the application and interpretation of these Rules.

 

MBM at all times reserves the right to decline or discontinue administration of arbitration for any case(s) due to a conflict with any MBM Policy or state/federal law or regulation, the conduct of a party, or failure to pay any fees required by MBM.