Rules of Mediation and Arbitration

I. General Rules

  1. Application of Rules – These Rules govern all proceedings by Northeast Mediation & Arbitration, LLC (hereinafter “NEMA”). When submitting a case for arbitration or mediation, the parties agree to be bound by these Rules.
    • § Conciliation – The voluntary submission of a dispute to mediation or arbitration.
    • § Conciliator – A Mediator or Arbitrator.
    • § Agreement – Written agreement signed by the parties submitting a dispute to mediation or arbitration.
    • § Mediation – The process whereby a neutral third party listens to both sides of a dispute and assists the parties in settling the dispute.
    • § Arbitration – The process whereby an Arbitrator(s) listens to testimony regarding a dispute and renders a legally binding decision.
    • § A person or party – Includes an individual or an entity, corporate or otherwise.
  2. Commencing Conciliation – Arbitration and/or mediation shall commence only after the parties sign (1) an Agreement to either arbitrate or mediate with NEMA and (2) a case submission form, which shall contain a statement of the issues and facts surrounding the dispute and the claims and remedies that the parties seek.
  3. Selection of Conciliator – Upon submitting a case to NEMA, the parties shall jointly agree upon the selection of a Conciliator.
  4. Time and Place of Conciliation – NEMA shall schedule all conciliations and mail scheduling notices to all parties.
  5. Stipulations – Any stipulation or agreement by the parties affecting the proceedings shall have binding effect.  Any modification to a stipulation or agreement must be in writing and signed by all parties to the stipulation or agreement.
  6. Representation by Counsel – A party may represent him- or herself or be represented by an attorney at any mediation or arbitration. NEMA serves only as an impartial mediator or arbitrator and will not represent any party nor provide any party with legal advice.
  7. Confidentiality – All communication that occurs during the conciliation process is treated as settlement negotiation and is strictly confidential and inadmissible for any purpose in a court of law, with few exceptions. This rule extends to all oral and written communication by the parties or by the Conciliator, including but not limited to all records, reports, letters, notes and other documents received or produced by the Conciliator as part of the conciliation process, with the exception of those documents that existed prior to the conciliation process and were otherwise open to discovery apart from the conciliation process. The Conciliator may not be compelled to divulge any documents or to testify in regard to the conciliation process in any judicial or adversarial proceeding whether by personal testimony, deposition, written interrogatory or sworn affidavit. Mediated settlement agreements and arbitration decisions shall be confidential unless all parties to a dispute sign a written waiver of confidentiality, or unless an agreement or decision must be filed with a civil court for purposes of enforcement. If an arbitration decision is appealed pursuant to statute, the Arbitrator, upon written request from a party, shall furnish to such party, at the party’s expense, certified copies of the arbitration decision and the Agreement to Arbitrate, which may be required in judicial proceedings relating to the Arbitrator. In limited situations, the Conciliator may divulge appropriate and necessary information under the following circumstances:
    1. When, as part of its normal office operations, the Conciliator consults with its staff or outside experts regarding particular issues or problems related to a case;
    2. When compelled by statute or by a court of law;
    3. When an arbitration decision has been contested or appealed;
    4. When an action has been brought against the Conciliator as a result of its participation in a conciliation case; and
    5. When the Conciliator deems it necessary to contact appropriate authorities to prevent another person from being harmed. Under these circumstances, the parties agree to waive confidentiality and agree that the Conciliator will not be liable for the release of this information.

    Despite these confidentiality requirements, some of the information discussed during the conciliation may not be confidential as a matter or law or may be discoverable outside the conciliation process and used in other legal proceedings. In such cases, the Conciliator will not be liable for the release of this information.
    No judicial proceeding by a party relating to the subject matter of the arbitration shall be deemed a waiver of a party’s right to arbitrate.
    Neither NEMA nor any Arbitrator in a proceeding under these rules is a necessary party in judicial proceeding relating to the arbitration.
    Parties to these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.

  8. Impartiality of Conciliators – Conciliators shall not have a personal or financial interest in the outcome of the dispute. Prior to the conciliation, the Conciliator shall disclose to the parties all facts that may create a presumption of bias or conflict of interest. If such facts exist, either party may request that the Conciliator withdraw from mediating or arbitrating the dispute.
  9. Settlement – If, after an arbitration hearing/proceeding, but prior to issuance of the Arbitrator’s decision, the parties reach a settlement agreement, the parties shall notify the arbitrator and no written decision will issue.
  10. Postponements – The Conciliator may, for good cause shown, postpone the hearing upon request of a party or may postpone the hearing upon his/her own initiative, giving notice to all parties in advance of the hearing. Postponements made at the request of a party are subject to the fees stated in the NEMA Fee Schedule.
  11. Extensions of Time – The parties may modify any period of time by mutual agreement. NEMA may, for good cause, extend any period of time established by these rules. NEMA shall notify the parties of any such extension and its reason therefore.
  12. Application of Law – Conciliators shall take into consideration any state, federal or local laws that the parties bring to their attention.

II. Mediation Rules

  1. Purpose – The purpose of mediation is to facilitate the ultimate resolution and agreement between the parties regarding the issues, problems, and disputes presented in mediation.
  2. Proceedings – A mediation meeting will normally include: 1) An introduction and opening; 2) Statements by each party clarifying the issues involved; 3) The presentation of each party’s claims, defenses and witnesses, as well as an opportunity for the other party to respond 4) Questioning by the mediators; 5) A discussion of appropriate solutions to the dispute; and 6) Agreement on a solution. If the parties cannot reach a voluntary agreement, the parties may discontinue the mediation and pursue other remedies or, by unanimous agreement, may submit the dispute to arbitration. At the conclusion, all proffered documents will be shredded unless counsel specifically wants certain documents returned. All Mediator’s notes will also be shredded.
  3. Separate Meetings with Parties – The Mediators may meet separately with any party during the course of the mediation to discuss possible resolutions to the dispute.
  4. Written Agreement – The Mediator shall prepare a written agreement stating any settlement agreed to by the parties during mediation. The agreement shall be legally binding if, and only if, the parties or their attorneys reduce it to a contract or stipulation that is signed by all parties.
  5. Termination of Mediation Session – If the Mediator concludes that agreement is not possible or that continuation of the mediation process would harm or prejudice one or both of the participants, the Mediator shall withdraw and the mediation shall conclude.
  6. Expenses – Each party is responsible for its own expenses associated with attendance at the mediation and submission of documents or other items to the Mediator. All other expenses of the mediation, including required travel or other expenses of the Mediator and of NEMA representatives, shall be borne equally by both parties, unless they agree otherwise.
  7. Documents – At the conclusion of said mediation all proffered documents and mediator notes will be destroyed/shredded.

III. Arbitration Rules

  1. Discovery – The scope and deadlines for any pre-hearing discovery shall be determined by agreement of the parties. If the parties are unable to agree on pre-hearing discovery, the parties shall submit a motion for discovery with opposition to NEMA and the Arbitrator will rule upon the motion and issue a discovery order. The Arbitrator shall provide for an oral hearing on discovery disputes when requested by any party to any arbitration.
  2. Opening Statements – At the commencement of the arbitration, each party shall present an opening statement describing the issue to be arbitrated.
  3. Order of Proceedings – The claimant shall be the first to submit its claims, proofs and witnesses by direct testimony. At the end of each witness’ testimony, the opposing party shall be allowed to cross-examine the witness. At the close of the claimant’s case, the opposing party will submit its claims, proofs and witnesses by direct testimony. At the end of each witness’ testimony, the claimant shall be allowed to cross-examine the witness. At the close of the opposing party’s case, the Arbitrator shall declare the hearing closed. If briefs or other documents are to be filed, the hearing shall be declared closed as of the date set by the Arbitrator for the receipt of briefs or other documents. All post-hearing briefs shall be filed with NEMA for transmission to the Arbitrator. All parties shall be afforded an opportunity to examine such documents.
  4. Oaths – The Arbitrator has discretion to require parties or witnesses to testify under oath. Oaths may be administered by the Arbitrator.
  5. Stipulations – Any stipulation/agreement by the parties affecting the proceedings shall have binding effect. Any modification to a stipulation/agreement must be in writing and signed by all parties to the stipulation/agreement.
  6. Evidence – The Arbitrator shall determine the relevance and materiality of the evidence offered. Submission of evidence may not need to conform to the legal rules of evidence. Without limitation, written documents and records should be exchanged between the parties at least ten (10) business days before the hearing date. The Arbitrator may subpoena witnesses or documents and may do so upon the request of any party or independently. The Arbitrator shall take evidence in the presence of all parties, unless a party has defaulted or has waived the right to be present. At the conclusion, all proffered documents will be shredded unless counsel specifically requests certain documents be returned. All Arbitrator’s notes will also be shredded.
  7. Witnesses – The Arbitrator shall have the authority to exclude any witness, other than a party, during the testimony of another witness. Any party intending to offer any medical report, medical bill or other medical records as evidence may do so at the hearing. Rebuttal medical evidence may also be offered at the hearing. The Arbitrator may receive and consider the evidence of witnesses by affidavit, but shall give it only such weight as the Arbitrator deems it entitled to after consideration of any objection made to its admission.
  8. Decisions – The Arbitrator shall render a written decision (award). The decision shall be issued within fifteen (15) business days of the hearing.
  9. Settlement – If, after an arbitration hearing/proceeding, but prior to issuance of the Arbitrator’s decision, the parties reach a settlement agreement, the parties shall notify the arbitrator and no written decision will issue.
  10. Reopening of Hearing – The hearing may be reopened by the Arbitrator or by motion of either party at any time before the award is made.
  11. Interpreters and Stenographic Record – NEMA does not provide interpreters or stenographers. Any party requiring an interpreter or stenographer must schedule such services, pay for such service, and notify NEMA and the other parties that such services have been retained prior to the scheduled hearing. If a stenographic transcript of the hearing is made, it must be made available to the Arbitrator and to the other party for inspection at a time and place determined by the Arbitrator.
  12. Communication with Arbitrator – All direct communication between the parties and the Arbitrator are prohibited, with the exception of arbitration hearings and discovery motions. Any other oral or written communication from the parties to an Arbitrator shall be directed to NEMA for transmission to the Arbitrator.
  13. Expenses – Each party is responsible for its own expenses associated with witness testimony and submission of documents or other items into evidence. All other expenses of the arbitration, including required travel and other expenses of the Arbitrator and of NEMA representatives and the expense of any witness and cost of any proof produced at the direct request of the Arbitrator shall be borne equally by both parties unless they agree otherwise or unless the Arbitrator in the award assesses such expense or any part against any specified party or parties.
  14. High-Low Arbitration – The parties may by agreement limit the range of any award made by the Arbitrator. The agreement for high-low arbitration shall be in writing and signed by the parties or their representatives. The agreement shall contain the minimum amount of any award (the low) and the maximum amount of any award (the high).
  15. Withdrawal – A party may not withdraw from arbitration without the written consent of all other parties who signed the arbitration agreement.
  16. Service of Notice – With the exception of the demand, which shall be served by U.S. certified mail/return receipt requested, each party shall be deemed to have consented that any papers, notices, or process necessary or proper for the initiation or continuation of an arbitration under these rules, for any court action in connection therewith or for the entry of judgment on any award made under these rules may be served upon such party by mail addressed to such party or its attorney at the last known address or by personal service, provided that reasonable opportunity to be heard with regard thereto has been granted to such party. The parties agree that communication received from each other or NEMA via facsimile machine, telex, telegram or other written form of electronic communication are valid and proper notice under these rules.
  17. Waiver of Rules – Any party who proceeds with Arbitration after knowledge that any provision or requirement of these rules has not been complied with and who fails to state an objection in writing shall be deemed to have waived the right to object.

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