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Table of Contents BBB Arbitration
Definitions
BBB Expedited Rules
for Arbitration
BBB ARBITRATION The Better Business Bureau of Upstate New York® (BBB) is a nonprofit organization supported by local businesses. It is dedicated to promoting and fostering the highest ethical relationship between businesses and the public through consumer and business education and voluntary self-regulation. The BBB assists in the resolution of disputes between a business and its customers. BBBs have a national reputation for fairness because they remain neutral in a dispute. They do not take sides but work to get the problem settled as quickly as possible. If you have a marketplace or commercial dispute, the BBB can offer you several ways to resolve it. Arbitration is one alternative dispute resolution (ADR) option. The BBB will provide a professionally trained Arbitrator who will listen to both sides, weigh the evidence and make a decision about the dispute. What is arbitration? Arbitration is an informal process in which two parties present their views of a dispute to a neutral third party, an arbitrator, who will decide how to resolve the dispute. Many businesses participating in BBB ADR programs have agreed to arbitrate disputes with their customers within defined limits. Other businesses ask the BBB to provide arbitration on a case-by-case basis. The issues and the types of awards that the Arbitrator may consider in your case will be outlined in a document called the Agreement to Arbitrate. The Bureau will work with you to write the Agreement to Arbitrate so it is based on the facts of your case. The Arbitrator will be asked to make an Award that he or she believes is fair based on the facts of your case. Who is the Arbitrator?
The BBB maintains a panel of qualified Arbitrators. Arbitrators shall be appointed to cases as outlined in these rules. The arbitration hearing The BBB will consult with the parties and the Arbitrator(s) in scheduling an arbitration hearing. While most cases require only a single hearing, additional hearings may be scheduled if the Arbitrator deems it necessary. How to prepare for
arbitration Before coming to your arbitration hearing, you should prepare an outline of your argument to help you in your presentation. You may want to use the checklist at the end of this section to assist you in your preparation. Also, before coming to the hearing, you should prepare a list of questions you want to ask the other party. What will happen at
the hearing? You will have an opportunity to state the facts as you see them. Each party also will have the opportunity to ask questions of the other party. The Arbitrator may also ask questions to clear up uncertain areas and to gain a full understanding of the dispute. After each side has presented its case and the questioning is completed, you should be prepared to give a summary of your position. Address any questions that have not been answered and tell the Arbitrator exactly what you think the Award should be and why. Remember that the sole purpose of the hearing is to allow the Arbitrator to gather and sort the facts in order to make a fair Award. You should be prepared to convince the Arbitrator that your position is right. A cooperative approach works best. You are there because a disagreement exists, but keep that disagreement factual and within the bounds of normal courtesy and conventional language. Arbitrators may not have technical expertise, so your presentation may be more productive if you can use layman’s terms to describe what happened. An arbitration
checklist This checklist will help you prepare for your arbitration hearing. Use the items that are appropriate to your case; some may not apply. 1 Organize your materials in the order you wish to present them. This will help you present your case clearly and logically. 2 Clearly state what the problem is and why you think the other party is responsible. 3 List in chronological order the actions you took to resolve the dispute, including: A. individuals with whom you spoke; B. when you spoke with them; C. what they told you and/or what actions they took; D. other business/service persons involved: - Who were they? - When did they get involved? - How did they become involved? - What did they tell you and/or what actions did they take? Written statements or the presence of witnesses can help substantiate the facts of your case. 4 Collect and bring to the hearing all available written information relating to your dispute. Bring original documents, if possible, and bring copies for the Arbitrator and the other party. If you do not have certain documents, you may be able to get copies from your repair shop, bank or credit card company. Documents that might be useful include: - Purchase order and finance/lease agreement. - Any relevant warranty. - Any repair, service and maintenance records and proof of payment for these services. - Correspondence between you and the other party. - Other documents which may support your case, e.g., newspaper/magazine articles, photographs, court decisions and legal documents, consumer group information, brochures and technical information. 5 List any witnesses who may have information about your complaint, such as mechanics or sales personnel. Attempt to contact them and ask them to testify in person or to submit written statements. You are responsible for your witnesses’ submission of information. If you want them to testify in person, keep them informed about the time and place of the hearing. Be over prepared Evidence will not be accepted after the hearing if it was possible to present that evidence at the hearing, or if the Arbitrator has already rendered an Award. In summary - Organize your case. - Back up your position with evidence. - A clear, concise and well-organized presentation supported by relevant facts and good documentation will help the Arbitrator fulfill his or her responsibility. DEFINITIONS The following list defines key words as they are used in these Rules. A. Arbitration is a process in which two or more persons agree to let an impartial person or panel decide their dispute. B. Arbitrator refers to the individual or panel selected to conduct your arbitration and make an Award in your dispute. Any action taken or Award made by a panel shall be by majority vote. C. BBB refers to the Better Business Bureau that is administering the arbitration. D. Days refers to calendar days. E. Award refers to the written document signed by the Arbitrator and mailed to the parties. F. Parties includes the consumer, the business and any other person or company that has precommitted to arbitrate or has signed an Agreement to Arbitrate under these Rules. These Rules often refer to the individual parties in an arbitration as the “consumer” the “company.” G. Shall is mandatory; may is discretionary. H. You refers to one of the parties involved in the dispute being arbitrated. Commercial Resolutions (Expedited) INTRODUCTION AND GENERAL RULES 1. SCOPE OF BBB ARBITRATION Where parties agree to arbitration under the Better Business Bureau (BBB) Commercial Resolutions (Expedited Rules) in a precommitted contract provision or other arbitration agreement, the rules that apply to the proceedings are those in effect at the time the arbitration is initiated. The decision as to whether your dispute (or any part of it) can be arbitrated rests solely with the BBB. 1.1 Time for Filing a Claim Time frames for filing claims shall be as outlined in the parties contract. BBB MIP Companies unless otherwise specified in a company’s precommitment with the BBB, claims must be filed within one year of the transaction that is the basis of the dispute or within the warranty period as provided by the company’s written warranty, whichever is the longer period. This time limitation may be waived by consent of all parties. 2. AGREEMENT TO ARBITRATE The BBB shall assist the parties in preparing an Agreement to Arbitrate that briefly describes the nature of the dispute and the Award sought as they are viewed by you and any other party. The Agreement to Arbitrate shall include only those claims that fall within the scope of these Rules, unless both parties agree to arbitrate additional claims in your case. The Agreement to Arbitrate is intended to be a general outline of the dispute, not an argument of your case. The BBB shall mail the Agreement to Arbitrate to each party prior to the hearing. Each party shall sign the Agreement to Arbitrate and return it to the BBB within five days of receiving it. Failure to mail the signed Agreement within this time period may result in a delay of the resolution of your case. You should contact the BBB at once if you disagree with the general description of your case and/or the Award you are seeking. Parties should not contact the BBB if they think the description of the other party’s case is in error; that is an issue for the Arbitrator to decide. BBB MIP Companies If a consumer’s claim falls within your pre-commitment to arbitrate, your failure to sign and return the Agreement to Arbitrate within the specified time frame will be considered your acceptance of that agreement and you will be bound by its terms. 3. DELIVERY OF COMMUNICATIONS All required communications shall be in writing and delivered to a Party’s designated legal representative, or to the Party if they do not have a designated legal representative, at the address most recently provided by the designated legal representative or the Party. All communications will be done through a means that provides confirmation of delivery. 4. TIME LIMITS The BBB shall make every effort to obtain a final resolution of your complaint within 60 days, unless state or federal law provides otherwise. Days specified under these rules shall mean calendar days unless otherwise indicated. The Arbitrator shall have the authority to set time limits for completion of any phase of the proceedings in addition to those explicitly set forth in these Rules. You and the other parties to the arbitration may jointly agree--in writing--to change any period of time stated in these Rules. 5. YOUR REPRESENTATIVE 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 the BBB at least eight days before the hearing. The BBB will notify the other parties to give them an opportunity to obtain lawyers. Your failure to give the BBB advance notice of legal representation may result in a rescheduling of your hearing. You are responsible for any fees charged by your representative. 6. INTERPRETERS If you require an interpreter for your arbitration you are responsible for providing one at your own expense. 7.INTERPRETATION OF RULES/RIGHT TO DISCONTINUE ARBITRATION The BBB reserves the right to make the final decision on procedural questions, on the scope of the agreements, on a Party’s eligibility for arbitration and on any other question concerning the application and interpretation of these Rules. The BBB at all times reserves the right to discontinue administration of arbitration for any case(s) due to a conflict with any state/federal law or regulation, or due to the conduct of a party. ARBITRATOR/PANEL RULES 8. SELECTING YOUR ARBITRATOR The BBB maintains a panel of qualified Arbitrators. The BBB shall randomly select an arbitrator to hear your case. At the BBB’s option, when required by law or contractual obligation, or when otherwise agreed upon by the parties a panel of three or more arbitrators may be selected for a case. Fees for selecting an arbitration panel will be based upon the fee schedule at the time the proceedings are initiated. 9. QUALIFYING THE ARBITRATOR The Arbitrator shall sign an oath pledging to make an impartial Award in your dispute. If the Arbitrator believes that he or she cannot make an impartial Award, he or she 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 Award), it shall be revealed to all parties and you may decide that this Arbitrator should not serve in your case. The BBB reserves the right to reject any Arbitrator for any reason that it believes will affect the program’s credibility. 10.COMMUNICATING WITH THE ARBITRATOR Neither the parties nor their representatives shall communicate in any way with the Arbitrator except at a hearing for which all parties have received notice or unless all other parties are present or have given their written permission. All other communication with the Arbitrator must be sent through the BBB. Violation of this rule may result in your case being discontinued. RULES OF THE ARBITRATION PROCEEDING 11. SUBPOENAS At the request of a party, the Arbitrator may issue subpoenas to compel witness testimony or the production of documentary evidence deemed important to a full and fair consideration of the dispute. Subpoenas shall be sent in accordance with applicable law and the party requesting the subpoena shall bear all costs involved in the issuance of the subpoena and shall be responsible for enforcement of the subpoena if necessary. 12. HEARING NOTICE The BBB will 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. If you object to the date, time or place stated in your notice, contact the BBB immediately. However, the BBB reserves the right to make the final decision as to the date, time and place for the arbitration hearing. 13. HEARING ON DOCUMENTS Although most arbitrations involve in-person hearings, the BBB, at your request or at its option, may arrange to have your statement and evidence presented by telephone or in writing. To the extent practical, the BBB will arrange for the hearing to be held at a location convenient to the consumer. If the arbitration is on documents only, all documents shall be submitted to the BBB no later than ten (10) days from the scheduled date of review. 14. ADJOURNMENTS A request to adjourn or postpone a scheduled hearing date must be made at least two (2) business days prior to the scheduled hearing date. The Arbitrator or the BBB may grant the request upon good cause shown. Any adjournment request made without the required notice is subject to the approval of the Arbitrator and may be subject to a rescheduling fee. 15. HEARING PROCEDURES You and your witnesses shall be placed under oath at the hearing. The Arbitrator will decide on the order and the procedures to follow for you to present your side of the dispute. 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 can limit your presentation if it is repetitious or irrelevant. You will 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 may also question the other parties, their witnesses and their evidence. After everyone has presented his or her case, each party will be given the opportunity to make a closing statement. 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 time specified by the Arbitrator. The BBB will send a copy to the other party and solicit a response. Both the written evidence and any response shall be submitted by the BBB to the Arbitrator. When the Arbitrator is satisfied that all testimony and evidence have been presented, your hearing will be closed. 16. ABSENTEE STATEMENTS 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 the BBB at least seven days before your hearing any written documents on which you will rely. The BBB will provide these documents to the other party before the hearing. Before the Arbitrator makes an Award, you may ask the Arbitrator to give you a reasonable number of days to respond to a written statement or document presented by the other party at the hearing. The Arbitrator may grant your request at his or her discretion. 17. TECHNICAL EXPERTS You have the right to have your own technical expert serve as a witness at your own expense. 18. INSPECTION BY THE ARBITRATOR Any party may request an on site inspection in connection with the dispute subject to arbitration. The party requesting an inspection must do so in writing to the BBB no later than ten (10) days prior to their scheduled arbitration hearing. The parties shall have the right to be present at any inspection but may waive that right prior to the scheduled inspection. Whenever possible, the inspection will be performed as part of the hearing; otherwise, the Arbitrator will schedule it for another date with all parties receiving at least ten (10) days notice unless such notice is waived by all parties. 19. CLOSING THE HEARING If you have been asked or allowed by the Arbitrator to furnish additional evidence in support of your case, the Arbitrator will set a deadline by which you must send the evidence to the BBB. The BBB will give the other party an opportunity to respond to your evidence and then will send all materials to the Arbitrator. The Arbitrator will 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 an Award within ten days after the hearing is closed. 20. ADMISSION OF EVIDENCE AFTER INITIAL HEARING After a hearing has been closed, there generally will be no further submissions of evidence allowed. One exception is if the Arbitrator determines, prior to an award being issued, that additional information is necessary to make a full and fair decision. The Arbitrator shall determine the manner and time frame for the submission of such evidence. 21. THE AWARD The Award of the Arbitrator shall be made by a preponderance of the evidence standard as specified in NYS 75 CPLR and/or Federal Arbitration Act. All parties shall receive a written Award signed by the Arbitrator via mail. The BBB will not release or discuss an Award on the phone prior to all parties receiving said Award. A. Scope of Awards An Award shall be one that: - the Arbitrator considers just and equitable; - falls within the scope of these Rules and your Agreement to Arbitrate. Unless otherwise agreed upon by the parties, the Arbitrator may allocate fees, costs and expenses among the parties in the Award. This may include but is not limited to fees mentioned in these Rules. Arbitrators are not bound to apply legal principles in reaching what the Arbitrator considers to be a fair resolution of the dispute. The Award 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 Awards The Arbitrator may render either a final or an interim Award. 1. If the Arbitrator renders a final Award, the Arbitrator has no further authority over the Award unless a valid request is made pursuant to Rule 21(C), Clarifying the Award; Rule 21(D), Correcting the Award or reasons for Award; or Rule 21(E), Award is impossible to perform or to perform timely. 2. If an Award requires action to be performed, the Arbitrator shall issue an interim award. In such a case, the Arbitrator shall retain jurisdiction over the execution of the Award until the actions are satisfactorily completed. All Awards directing repairs shall be interim awards. If a party notifies the BBB within the time frame designated by the Arbitrator, that performance ordered was not completed or completed unsatisfactorily, the BBB shall notify the other party. The other party will have ten (10) days to respond in writing to the BBB regarding the claim of non-compliance. If the party fails to respond within the ten (10) day period, the BBB will forward the complaint and non-response to the Arbitrator to render a Final Award. The Arbitrator may determine it necessary to set a further hearing to receive additional evidence. C. Clarifying the Award You may request that the Arbitrator clarify a Award if you do not understand the Award, or if you and the other parties disagree about the specific action required by the Award. Requests for clarification must be sent in writing to the BBB within 10 days of your receipt of the Award. The BBB 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 Award. If your written statement to the BBB is an appropriate request for clarification of the Award, the BBB will 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 Award or reject the request for clarification and let the Award stand as written. You may not ask the Arbitrator to clarify the reasons for the Award. D. Correcting the Award or reasons for the Award You may request a correction of the Award or the reasons for Award if you believe the Award or reasons contain a mistake of fact, a miscalculation of figures or exceeds the Arbitrator’s authority. Requests for correction of a Award or reasons must be sent in writing to the BBB within ten (10) days of your receipt of the Award. A mistake of fact is not a conclusion of the Arbitrator with which you disagree; it is a true error in such information as a date, time, place or name, and may justify a correction only if it concerns the essence of the Award. A miscalculation of figures is not a dollar figure that you consider unfair; it is a mathematical error. The Arbitrator’s authority is limited to the scope of the Agreement to Arbitrate. The BBB will not accept a correction request that attempts to reargue your case or that is based solely upon your disagreement or disappointment with the Award. If your written statement to the BBB is an appropriate request for correction, the BBB will 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 Award or reasons or reject the request for correction and let the Award or reasons stand as written. E. Award is impossible to perform or to perform timely If you believe you cannot perform the Arbitrator’s Award within the established time limit, or at all, you should immediately inform the BBB in writing. The BBB will process your submission in the same manner as a request for correction. 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 Award may then be changed to include any remedy falling within the scope of the Agreement to Arbitrate. If a party has exceeded the time for performance specified in the Award, the BBB should be notified in writing. The BBB will immediately contact the non-compliant party and attempt to determine the reasons for non-compliance. F. Suspending the time to perform If you submit to the BBB a written statement relating to correction, clarification or impossibility of performing the Award, the time for acceptance and performance of a Award shall be suspended until the issue is resolved by the Arbitrator or by the BBB. G. After Award is issued Once an Award in your case has been issued: - The parties will be legally bound to abide by the Award and must comply with the Award’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 the company fails to perform according to the Arbitrator’s Award. 26. REMEDIES The following remedies may not be awarded in a BBB arbitration proceeding unless all parties are in agreement that the Arbitrator may award them: - Compensation for lost wages - Compensation for mental anguish - Punitive damages - Legal fees MISCELLANEOUS RULES 27. RECORD OF HEARING The BBB will maintain basic file information on your arbitration hearing for one year, or longer if required by law. This information will include the witnesses’ names and documents presented as evidence at the hearing. Copies of these materials and official arbitration forms relating to your case will be given to you on request. A reasonable copying fee may be charged. 28. 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 Award. If a settlement is reached after the hearing but before the Arbitrator’s final Award, be sure to notify the BBB at once. 29. MEDIATION The parties shall have the right to initiate mediation at any point during the proceedings. If the parties agree to mediation, the BBB shall appoint a mediator in accordance with the rules of the Commercial Mediation Program. No additional administrative fee is required for initiation of mediation 30. TIMELY OBJECTIONS All objections on the basis of a failure to comply with the provisions or requirements of these Rules must be submitted in writing and notice given to the non-objecting party and the BBB within five (5) days of the date that the failure was realized. A party shall be deemed to have waived the right to object to a failure to comply with any of these Rules if that party neglects to timely state the objection and the reasons for the objection. 31. YOUR ABSENCE FROM THE HEARING If you do not attend a hearing after receiving proper notice from the BBB, the Arbitrator may decide to proceed with the hearing without you. In deciding whether or not to proceed with the hearing, the Arbitrator will take into account, along with other relevant considerations, any unforeseen circumstances or emergencies that prevented you from attending the hearing as scheduled and from giving the BBB advance notice that you will not attend. Your absence will not result in an automatic Award against you and you shall be given an opportunity to present your case in a time and manner set by the Arbitrator. If you then fail to present your case, the Arbitrator may make an Award without your presentation. 32. CONFIDENTIALITY OF RECORDS The BBB and its Arbitrators under these Rules shall treat all matters related to the arbitration proceedings, including the Award(s), as confidential except as required by law. 33. ATTENDANCE AT HEARINGS The BBB has the option to arrange for its staff, volunteers from its pool of arbitrators, or government representatives to attend arbitration hearings. For any other observer to attend a hearing, the BBB 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 subject to the BBB’s directions regarding proper conduct. 34. JUDICIAL PROCEEDINGS/EXCLUSION OF LIABILITY In submitting to arbitration under these Rules, you agree that the Arbitrator shall not be subpoenaed by either party in any subsequent legal proceeding. Judgement may be entered on the arbitration Award in any court having jurisdiction thereof. 35. IMMUNITY OF THE BBB/ARBITRATOR Neither the BBB nor the Arbitrator shall be liable for any act or omission in connection with the arbitration proceedings. 36. Costs Administrative fees of the BBB are based upon the amount of the claim or counterclaim. Administrative fees are due at the time of filing a claim or a counterclaim. Each Arbitrator shall be compensated at the rate quoted at the time of filing. The BBB and/or the Arbitrator shall have the right to suspend or terminate the arbitration proceeding for non-payment of fees. |
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