Arbitration Manual
ARTICLE 1 - DEFINITIONS
Section 1 BOARD: All references to “Board” in this manual means the Cincinnati Area Board of Realtors®.
Section 2 COMPLAINANT: All references to “Complainant” in this manual means the individual(s) who files an arbitration complaint against another in an effort to settle a matter in dispute.
Section 3 RESPONDENT: All references to “Respondent” in this manual means the individual(s) against whom an arbitration complaint is filed.
Section 4 EXECUTIVE VICE PRESIDENT: All references to Executive Vice President in this manual collectively means any staff designee appointed by the Executive Vice President to handle administrative procedures.
Section 5 DAYS: All references to “days” in this Manual means calendar days.
Section 6 FILE(D): All references to "file(d)" in this Manual means received at the Board office.
ARTICLE 2 - PROFESSIONAL STANDARDS COMMITTEE
Section 1 ESTABLISHMENT OF PROFESSIONAL STANDARDS COMMITTEE: There shall be a Professional Standards Committee of at least twenty (20) REALTOR® Members appointed annually by the President in such manner as to create staggered terms of the Members to ensure continuity of knowledge, ability and experience by the Professional Standards Committee. The Professional Standards Committee Chair or the Chair’s designee shall appoint from the ranks of the Professional Standards Committee separate Hearing Panels of a minimum of five (5) Members each and three (3) alternate Members, and shall designate one (1) Member of each panel as Hearing Panel Chair for a given hearing to hear matters of dispute between Board Members. The Professional Standards Committee Chair or the Chair’s designee shall appoint substitutes to the Hearing Panels as needed. The Professional Standards Committee Liaison Director, if appointed, may serve as a panel Member with voting rights provided advance notice is sent to each party. If a procedural review to the Board of Directors should arise, the Liaison Director shall be disqualified from voting on the final decision of the Directors.
Section 2 JURISDICTION OF PROFESSIONAL STANDARDS COMMITTEE: The Professional Standards Committee shall have the duty to provide for arbitration on all matters in dispute between REALTOR® Members of the Board and any other party or parties, as provided in Article 6, Section 2.5 of the Board Constitution. Hearing Panels of the Professional Standards Committee are empowered to hear and decide disputes. The Hearing Panel’s decision shall be final and binding upon all parties involved in the dispute; subject only to a procedural review as provided in Article 7 of this manual.
2.1 The Hearing Panel will not hear disputes involving the division of commissions until after the transaction has closed.
2.2 The Hearing Panel, at its discretion, may call in outside experts for counsel and advice.
2.3 When an arbitrable dispute arises between REALTORS® affiliated with different firms, and the REALTORS® are both Members of the same two (or more) Boards, the arbitration shall be conducted by the Board having territorial jurisdiction over the area in which the property is located, unless the parties to the dispute voluntarily agree to submit to arbitration before another Board in which they both hold membership.
Section 3 MANDATORY ARBITRATION: Circumstances under which REALTORS® must submit to arbitration include:
(a) Every REALTOR® of the Board who is a REALTOR® principal, every REALTOR® principal who participates in the Board’s MLS where they do not hold Board membership and every nonmember broker or licensed or certified appraiser who is a Participant in the Board’s MLS shall have the right to invoke the Board’s arbitration facilities in any dispute arising out of the real estate business with a REALTOR® principal in another real estate firm or with that firm (or both), or nonmember broker/appraiser or their firm (or both) who is a Participant in the Board’s MLS.
(b) A REALTOR® other than a principal shall have the right to invoke the arbitration facilities of the Board in a business dispute with a REALTOR® who is not the principal in another firm, whether in the same or different Board, provided the REALTOR® principal with whom the REALTOR® is associated joins in the arbitration request and the REALTOR® principal of the Respondent’s firm is joined.
(c) A client of a REALTOR® may invoke the facilities of the Board in a business dispute with a REALTOR® arising out of an agency relationship provided the client agrees to be bound by the arbitration. In the event of such request and agreement by the client, the REALTOR® shall have an obligation to arbitrate the dispute and the Board will arbitrate the dispute subject to the Board’s right to decline arbitration based on the amount or legal complexity of the controversy.
Section 4 VOLUNTARY ARBITRATION: Circumstances under which arbitration is contingent upon the REALTOR®’s voluntary participation include:
(a) REALTORS® affiliated with the same firm shall have the right to invoke the arbitration facilities of the Board provided each party voluntarily agrees to the arbitration in writing and the Board finds the matter properly subject to arbitration. This privilege as stated shall apply to disputes arising when the parties are or were affiliated with the same firm, irrespective of the time request is made for such arbitration.
(b) A REALTOR® who is a principal broker of a firm may invoke the arbitration facilities of the broker’s Board in a dispute arising out of the real estate business with a nonmember broker, provided each party agrees in writing to the arbitration and provided the Board finds the matter properly subject to arbitration. However, it shall be optional with the Member as to whether the Member will submit a claim to arbitration by a nonmember broker. A nonmember broker or salesperson shall not be entitled to invoke the arbitration facilities of the Board.
(c) Business disputes between a REALTOR® and a customer of the REALTOR® may be arbitrated by the Board if a written contractual relationship has been created by a REALTOR® between a customer and a client and provided each party agrees in writing to arbitrate the dispute.
Section 5 CONDITION OF MEMBERSHIP: All REALTOR® Members of the Cincinnati Area Board of Realtors® shall, as a condition of membership in the Board, agree to submit to the arbitration procedure outlined herein. If the complaint against a Member is that the Member has improperly refused to submit a controversy to arbitration, the complaint shall be brought before the Board of Directors at the next regular meeting or at a special meeting called by the President for that purpose. The Board of Directors may direct implementation of any one or more of the disciplinary actions outlined in Section 6 below.
Section 6 NATURE OF DISCIPLINE: Disciplinary action may consist only of one or more of the following:
(a) A Letter of Warning with a copy to be placed in the member’s file;
(b) A Letter of Reprimand with a copy to be placed in the member’s file;
(c) A requirement that the Member complete NAR’s New Member Ethics Orientation or Quadrennial Realtor Ethics Training Course or other Ethics Courses and/or Seminars specified by the Hearing Panel which the Respondent could reasonably attend taking into consideration cost, location and duration;
(d) A fine imposed on the Member not to exceed $5,000 irrespective of the number of Code of Ethics violations;
(e) That the Member placed on probation for a stated period of time not less than thirty (30) days and not to exceed one (1) year. Probation may be mutually exclusive or in addition to any other disciplinary measures.
(f) A recommendation to Board of Directors that the Member be suspended from the Board for a stated period not less than thirty (30) days and not to exceed one (1) year, with automatic reinstatement of membership in good standing at the end of the specified period of suspension. Suspension means relinquishing all membership rights and privileges and denial of Board services, including, but not limited to, use of the term REALTOR®. Although membership rights, privileges and services are withdrawn as specified in the notice of suspension, membership continues, and the suspended Member remains obligated for payment of membership dues, and to abide by the Code of Ethics during the period of suspension. Any failure to abide by the terms of suspension, or subsequent violation of the Code of Ethics, after a hearing as provided in this manual, shall be grounds for consideration as to possible extension of the suspension or expulsion from the Board;
(g) A recommendation to the Board of Directors that the Member be expelled from the Board, with no automatic reinstatement privilege, for a specified period of one (1) to three (3) years, with reinstatement of membership to be by application only after the end of the specified period of expulsion, with the application considered on its merits.
6.1 The Board of Directors may order suspension or expulsion unconditionally, or they may, at their discretion, give the disciplined Member the option of paying to the Board within such time as the Board of Directors shall designate an assessment in an amount fixed by the Board of Directors, not to exceed $2,500. Such option may only be granted to a Member by the Board of Directors once in any three-year period, in lieu of accepting suspension or expulsion. But if the conduct for which suspension or expulsion is ordered consists of failure to submit a dispute to arbitration, the Board of Directors may not permit the disciplined Member to avoid suspension or expulsion without submitting to arbitration in addition to paying the assessment, unless in the meanwhile the controversy has been submitted to a court of law without any objection by any party that it should be arbitrated.
6.2 In addition, an administrative processing fee not to exceed $500 may be assessed against respondents found in violation of the Code of Ethics or other membership duties which may be in addition to, and not part of, any sanction that may be imposed.
Section 7 BOARD’S RIGHTS TO DECLINE ARBITRATION: If the Hearing Panel selected in the manner herein provided recommends to the Professional Standards Committee that because of the amount involved or the legal complexity of the controversy the dispute should not be arbitrated, the Professional Standards Committee shall so report to the Board of Directors and if the Board of Directors concurs, the arbitration shall terminate and the parties shall be relieved of the obligation to arbitrate the controversy. In this event, any deposit made by the parties shall be returned to the parties. If the Board of Directors does not concur, arbitration shall continue as provided herein.
Section 1 ESTABLISHMENT OF A GRIEVANCE ADVISORY COMMITTEE: There shall be a Grievance Advisory Committee of REALTOR® Members appointed annually by the President in such a manner to create staggered terms of Members to ensure continuity of knowledge, ability and experience by the Grievance Advisory Committee.
Section 2 FUNCTION OF THE GRIEVANCE ADVISORY COMMITTEE: The Grievance Advisory Committee shall provide counsel to the Executive Vice President, upon request, regarding initial consideration to requests for arbitration. The Grievance Advisory Committee should not determine the truthfulness of the complaint, but rather will provide counsel in determining whether to refer a matter to a hearing before a Hearing Panel of the Professional Standards Committee or to dismiss unsubstantial complaints and those that are frivolous or harassing. In the event the Committee finds the information within a complaint insufficient to substantiate its claim, the Committee may make any preliminary investigations deemed necessary in order to determine the proper disposition of the complaint.
2.1 If an arbitration request is dismissed as being unworthy of further consideration, or if either party to an arbitration request believes that the issue presented by the request has incorrectly been classified (mandatory or voluntary), the decision is subject to review by the Board of Directors. The request for review must be made in writing and received at the Board office within twenty (20) days from receipt or date of attempted delivery of the notice. In the event of such a review, neither party has the right to appear and the Board of Directors will receive and consider only those materials that were available at the time of the decision.
Section 3 QUALIFICATION OF PANEL MEMBERS: Only one person connected with any firm, business, partnership or corporation may serve on the same Hearing Panel. A person shall automatically be disqualified to be a Member of a Hearing Panel in any case in which the panelist is (1) a party, (2) related by blood or marriage to a party, (3) an employer, employee, partner or other business associate of a party, or (4) objected to by a party as provided in “Parties Right to Challenge Panel Members.”
Section 4 HEARING PANEL’S STATEMENT OF QUALIFICATION: Before sitting in any case, each Member of a Hearing Panel shall sign a statement (1) that the Member is not disqualified for any of the foregoing reasons stated, and (2) that the Member knows of no other reason that might prevent the Member from rendering an impartial decision.
Section 5 COMMERCIAL/INVESTMENT HEARING PANELS: In the case of an arbitration request involving issues related to areas of the real estate business such as commercial, investment, industrial, etc., a Hearing Panel will be appointed to consist of Members who are practitioners in such fields.
Section 6 ADDITIONAL PROFESSIONAL STANDARDS COMMITTEE MEMBERS: The President shall have the authority to appoint additional Professional Standards Committee Members as the need arises. Such person(s) may serve as a Hearing Panel Member.
Section 7 RESPONSIBILITY OF PANEL MEMBERS: Every Member of a Hearing Panel shall avoid, so far as possible, discussing the case with any person before the hearing. If the Member does engage in any such discussion before the hearing, the Member must disclose the fact to the parties and to the other Members of the Hearing Panel no later than the beginning of the hearing. After the hearing and before the decision, no Member of a Hearing Panel shall discuss the case with any person, other than the Members of the Hearing Panel, the Professional Standards Committee, the Executive Vice President, or Board Counsel; to do so shall be a violation of a membership duty.
Section 8 PARTIES’ RIGHT TO CHALLENGE PANEL MEMBERS: Any party may file with the Executive Vice President a written notice of disqualification of a Member of a Hearing Panel, stating which of the grounds provided herein apply. A party shall be deemed to have waived any ground of disqualification of which the party then has knowledge unless the party files the request within seven (7) days after the list of panel Members is received by the parties. Further, if a majority of the Members of the Hearing Panel find any automatic ground of disqualification to be present or find any other facts which in their judgment may prevent the Member from rendering an impartial decision, or appear to do so, the Member shall stand disqualified and be replaced.
Section 9 FURTHER RULES: The Professional Standards Committee may, from time to time, make reasonable rules for the conduct of hearings and for the conduct of business not inconsistent with these rules. Any such rules made by the Professional Standards Committee shall be printed and furnished to each Complainant and Respondent along with the notice of hearing.
Section 10 FORMS: The Professional Standards Committee may adopt such forms it deems necessary for the proper handling of cases, and such forms shall be printed and made available at the Board office.
ARTICLE 4 - ADMINISTRATION
Section 1 COMMUNICATIONS AND CLERICAL MATTERS: Communications shall be directed to the Executive Vice President. The Executive Vice President shall render all necessary assistance to the parties, shall on application furnish forms and papers required, shall receive and file all documents or other papers, and shall receive all fees and disburse all monies payable to the Board.
Section 2 MAILING OF NOTICES: All notices shall be in writing and shall be mailed by Certified or Registered mail, postage prepaid, return receipt requested. Time of delivery shall be as shown on the return receipt. A party to a complaint shall keep the Executive Vice President informed of the party’s address at all times. Any notice required to be given or paper required to be served or filed shall be deemed given, served or filed when mailed to the address of record unless otherwise specified in this Manual.
Section 3 FILING COMPLAINT OF ARBITRATION: All arbitration disputes shall be initiated by filing with the Executive Vice President a completed “Complaint” form, together with all other documentary evidence which the Complainant with reasonable diligence can obtain; provided, however, that the complaint must be filed and received at the Board office within one hundred eighty (180) days after the closing of the transaction involved in the dispute.
Section 4 INFLUENCE OF LITIGATION: If litigation relating to the issues that are the subject of the complaint are pending between the Complainant and the Respondent when a complaint is filed, the Professional Standards Committee may elect not to proceed until litigation has been concluded.
Section 5 WAIVER OF RIGHT OF RECOURSE TO COURT: As a condition of membership, any REALTOR® Member serving as Complainant or Respondent shall agree in writing before the hearing to waive recourse to any court on the complaint and shall agree in writing in advance to abide by any arbitration
award made. Notwithstanding the above, a Member may assert any legal rights to which the Member is entitled as specified in Article 7, Section 4.
Section 6 NOTICE TO RESPONDENT: A copy of a complaint shall be mailed by the Executive Vice President to the Respondent no later than twenty one (21) days after receipt of a complaint by the Executive Vice President.
Section 7 ANSWERS: It shall be the duty of the Respondent to file a completed “Answer” form, together with all other pertinent documentary evidence which with reasonable diligence can be obtained. The Respondent’s answer shall be mailed to the Executive Vice President no later than fifteen (15) days after receipt of the complaint. The Hearing Panel Chair or the Executive Vice President shall have the authority to grant extensions of time for filing an answer in case of illness, or for other good and sufficient reasons. The Executive Vice President shall make a record of all extensions granted and the reason therefor. The Executive Vice President shall mail a copy of the answer to the Complainant. If the Respondent fails to answer within the fifteen (15) day period, the charges may be taken as true by default. A Hearing Panel may accept late filing of the Answer at its discretion.
Section 8 WITHDRAWAL OF COMPLAINTS: The parties to an arbitration may settle the issue between them by agreement at any time and, in such event, upon written notification of the Executive Vice President, signed by both parties, the arbitration proceedings shall be terminated.
Section 9 AMENDMENT OF COMPLAINT: No later than five (5) days prior to the date of hearing of a complaint, the Complainant may file an amended complaint, other than the addition of witnesses, with the Executive Vice President. The Hearing Panel may disallow the amended complaint, in which case the Executive Vice President shall set a date for hearing on the original complaint. If the amended complaint is allowed, it shall relate back to the date of the original complaint, but the Executive Vice President shall otherwise treat the amended complaint as a new complaint hereunder and shall be subject to the procedures outlined herein.
9.1 At any time during the hearing a complaint may be amended either by the Complainant, subject to approval of the Hearing Panel, or upon motion of the Hearing Panel. In such event the hearing may be continued to a date certain (recessed hearing), not less than fifteen (15) days or more than thirty (30) days from adjournment. The amended complaint shall be filed in writing, signed by the Complainant or by the Chair of the Hearing Panel, and shall be promptly served on the Respondent and the Respondent shall have the opportunity to respond as in all other cases provided herein.
Section 10 NOTICE OF HEARING: Written notice of a hearing shall be mailed or served to the parties not less than twenty-one (21) days prior to the date of hearing by Certified or Registered mail, postage prepaid, return receipt requested, or by personal delivery for which receipt shall be given. Any notice required to be mailed or served shall be deemed as such when mailed or delivered to the parties’ usual place of business. The notice of any hearing except for a recessed hearing shall include the names of the Members of the Hearing Panel, the date, time and place thereof. The address of the Respondent shall be the Respondent’s usual place of business on the records of the Board unless the Respondent shall notify the Board, in writing, of a different address.
ARTICLE 5 - RIGHTS & RESPONSIBILITIES
OF PARTIES TO HEARING
Section 1 MEMBER’S RIGHT TO HEARING: No decision shall be rendered by the Hearing Panel unless the Respondent has first been given a written notice of hearing and an opportunity to be heard. Both parties should be present in person at the hearing. Failure to appear can result in an adverse decision by default.
Section 2 MEMBER’S DUTY TO GIVE EVIDENCE: When summoned by the Hearing Panel to provide evidence giving not less than ten (10) days notice, it shall be a duty of every Member to appear at the hearing, produce any records or data pertinent to the case and designated by the Hearing Panel or Professional Standards Committee, and to testify truthfully. Refusal of a Member to submit personally, refusal of a Member to submit requested records for examination or failure to comply with a request of the Hearing Panel or Professional Standards Committee for relevant information may be deemed an admission of truth of the claim against the Member.
Section 3 WAIVER AND HOLD HARMLESS: Each Member, by virtue of membership, holds harmless and waives any right of recourse against the Board, its staff, Members, and any Member of a Hearing Panel, Grievance Advisory Committee, Professional Standards Committee or Board of Directors for anything done under these rules and the Board Constitution.
Section 4 ATTENDANCE OF PARTIES AT HEARING: In the event that the Respondent(s) and/or the Complainant(s) fail to appear at a duly noticed hearing without obtaining a continuance or adjournment thereof, the Hearing Panel may proceed with the hearing in the absence of either or both of the parties and shall reach its decision based on the evidence available at the time of the hearing; or it may elect to postpone the hearing until all parties can be present. Thereafter, all procedures set forth herein shall be followed.
Section 5 WITNESSES:
5.1 Each party is responsible for having their witnesses present at the hearing, and the Hearing Panel may summon its own witnesses, provided all parties are notified in writing at least ten (10) days prior to the hearing. In instances of arbitration involving REALTORS® other than principals, such individuals are parties to the arbitration and retain the right to be present throughout the proceeding. Each party shall notify the Executive Vice President who will, in turn, notify the Hearing Panel and the other party in writing at least ten (10) days in advance of hearing of the names of the witnesses the party intends to have present and shall outline the area of expected testimony of each witness. Failure to provide this information within the time specified will constitute a waiver of the right to call those witnesses to the hearing, unless the other party agrees to allow their testimony. In any case, where all of the names of witnesses a party intends to call to the hearing have not been provided within the time period specified, and if the Hearing Panel believes that the testimony of that witness(es) or any other witness is essential to ensure due process, their testimony may be permitted provided the other party has the right to request that the hearing be recessed and continued to a date certain, not less than five (5) days later.
5.2 Questions as to whether a Member who has been called as a witness but who refuses to appear or asserts that their appearance will result in an unreasonable hardship, shall be determined by the Hearing Panel Chair as soon as practical. Refusal to appear, after the Chair has determined that the member’s appearance is required, may result at the Chair’s discretion in a charge that Article 14 of the Code of Ethics has been violated and may be filed against the Member by the Hearing Panel Chair.
Section 6 RIGHT OF COUNSEL TO APPEAR: Each party may be represented by legal counsel, if said party notifies the Executive Vice President who will, in turn, notify the other party and the Hearing Panel in writing at least ten (10) days before the hearing of a party’s intention to have counsel. The Hearing Panel may have counsel present without prior notice to the parties to advise it on matters of concern. Please be aware that counsel to any party who becomes disruptive to the proceedings may be excused by the Panel Chair and the hearing rescheduled for another date.
Section 7 CONTINUANCE: Once a hearing date has been set, the parties may request in writing that the Chair of the Hearing Panel grant a continuance. The Hearing Panel Chair, at the Chair’s discretion and for sound reasons, may continue the hearing. The Hearing Panel Chair may not grant more than two (2) continuances to any party to the dispute.
Section 8 ATTEMPT TO INFLUENCE HEARING PANEL
8.1 Any attempt, directly or indirectly, to influence a Member of a Hearing Panel, the Grievance Advisory Committee or the Professional Standards Committee in any matter before it, other than by giving evidence and argument in an open hearing or by writing submitted to the Hearing Panel or Professional Standards Committee, is a violation of a membership duty and will subject the violator to disciplinary proceedings.
8.2 Attempts by a nonmember to influence a Member of the Hearing Panel, the Grievance Advisory Committee or the Professional Standards Committee, if done on behalf of a party to the complaint who is also a nonmember, shall be cause for rejecting the complaint or answer.
Section 9 CONDUCT OF HEARING: At any hearing each party has the right to present any witnesses, the names and expected testimony of which has been submitted in advance as herein provided, to submit any evidence pertinent to the case, and to cross examine witnesses of others. Witnesses giving oral testimony shall be sworn by a Notary Public. Before permitting testimony relating to the character or general reputation of anyone, the Hearing Panel shall satisfy itself that the testimony has a direct bearing on the case at issue. The Hearing Panel, at its discretion, may order that the witnesses be separated.
Section 10 RECORD OF HEARING: The Professional Standards Committee may keep such records of hearings and its proceedings as the Professional Standards Committee may deem necessary in each case. In addition, either party, at the party’s own expense, may make such record as the party desires.
The Board’s tape recording shall be considered the official record of the proceeding. Copies of any tape recording or any transcript prepared from any tape recording of the hearing are to be used only for the purpose of appeals and rehearings. Any party to a hearing has a right to obtain a copy of the Board’s official tape recording subject to payment of the Board’s duplication costs. The request must be made within the time frame for filing an appeal or petition for rehearing as specified under Article 7, Section 1, Procedural Review. And any duplication will be conducted under the supervision of the Board. If the Board transcribes its official tape recording, any party to the hearing may obtain a copy of the transcript subject to paying the Board’s transcription costs. If more than one party requests copy of the transcript, the Board’s costs will be apportioned between or among the parties.
If a party purchases a copy of the Board’s official tape recording, and subsequently has it transcribed at the party’s own expense, that party must provide a copy of the transcript to the Board at no cost. After the Board has received a copy of the transcript, the Board shall make copies of the transcript available to any other party subject to their payment of the Board’s duplication costs.
Section 11 INTERPRETATION OF CONSTITUTION: If any provision of the Board Constitution or rule or regulation relative to procedure is involved, the interpretation by the Hearing Panel of the Constitution, rule, or regulation shall be conclusive and final, except that the Board of Directors, on a procedural review, shall not be bound by that interpretation.
ARTICLE 6 - FINAL ACTION - ARBITRATION AWARD
Section 1 DECISION OF HEARING PANEL ON ARBITRATION: The Hearing Panel, within thirty (30) calendar days after a hearing which involves arbitration, shall render its arbitration decision. The decision shall be based on a preponderance of the evidence and shall be placed in writing and signed by the arbitrators or a majority of them, and served on each of the parties and shall not be subject to review by the Professional Standards Committee. Preponderance of evidence shall be defined as evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the facts sought to be proved are more probable than not. Once the decision has been made, the parties shall not discuss it with any of the Hearing Panel Members; to do so is a breach of duty of membership. Notwithstanding the foregoing, the party to an arbitration hearing may request a procedural review by the Board of Directors only with respect to such alleged irregularities occurring in the conduct of the proceeding as may have deprived the party of fundamental “due process.” (NOTE: See “Procedural Review” contained in Article 7.)
Section 2 SATISFACTION OF ARBITRATION AWARD: Parties to an arbitration shall satisfy the award made by the Hearing Panel within thirty (30) days from the date of delivery of notice of the decision or deposit the funds with the Board to be held in a special escrow account maintained for this purpose until procedural review or legal challenge has been completed. Failure to satisfy the award or deposit the funds with the Board within this time period may be considered a violation of a membership duty and may subject the Member to disciplinary action at the discretion of the Board of Directors.
The party failing to make the necessary deposit shall be advised of the date, time and place of the Directors meeting and shall have an opportunity to explain why the required deposits were not made on a timely basis. The Board of Directors may, at their discretion, impose discipline or may give the party additional time to make the required deposit. The Directors may also stipulate appropriate discipline to be automatically imposed if the party fails to make the deposit within the time established by the Directors. Any interest accrued on the escrowed funds shall become the property of the party to whom the funds are ultimately released by the Board.
ARTICLE 7 - PROCEDURAL REVIEW
Note: Any matter in this Procedural Review section of the Arbitration Manual pertaining to the Board of Directors may, at the option of the Board President, be referred to the Executive Committee for action with the same level of decision-making authority as the Board of Directors and, in such event, the decision of the Executive Committee shall stand as that of the Board of Directors.
Section 1 ARBITRATION
1.1 The Board of Directors shall not hear an appeal with respect to the merits of an arbitration award, and shall not on procedural review take into account such evidence offered with respect to the merits of that award, except as such evidence may bear upon a claim of deprivation of due process. However, if the Board of Directors determine that a substantive procedural error occurred or a REALTOR® Member was otherwise deprived of due process, they shall invalidate the original arbitration award and direct that the matter be referred to the Professional Standards Committee for a new hearing before a different Hearing Panel.
1.2 Either party, within twenty (20) days from the date the party received the arbitration award or date of attempted delivery may file with the Executive Vice President a written request for procedural review together with a fee of twenty-five (25) dollars. Such written request for procedural review shall be filed personally or by Certified or Registered Mail, postage prepaid, return receipt requested. The request for procedural review must cite the alleged procedural deficiencies or other irregularities the party believes constitute a deprivation of due process (e.g., fraud; coercion; bias; prejudice; evident partiality; etc.) on the part of hearing panel members or others acting on behalf of the board. Only the bases raised in the written request for procedural review may be raised during the review before the Directors. The request for procedural review shall be reviewed by the Board President (or the President’s designee) only for the purpose of determining whether the request states any legitimate basis for consideration by the Board of Directors. If determined to be insufficient, it shall be returned to the requestor accompanied by an explanation and a request for additional detail. This initial administrative review is not a decision on the merits of the request for procedural review but is only intended to ensure compliance with the requirement that the request cite the procedural deficiency or irregularity on which the request is based and which will be presented to the Board of Directors for their consideration. If no such review is requested, the award becomes final and binding following the 30-day period. However, if procedural review is requested, the award is not considered final and binding until after the Board of Directors has concluded that the hearing had been conducted in a manner consistent with the Board’s procedures and the parties had been afforded due process. The funds deposited with the Board shall be retained until the review is completed.
NOTE: On procedural review no new evidence may be submitted.
1.3 Upon receipt of the written request for procedural review, such review shall be processed, and copies of the procedural review request shall be mailed within ten (10) calendar days to all other parties to the case.
Section 2 BOARD OF DIRECTORS’ ACTION ON PROCEDURAL REVIEW
2.1 If a request for procedural review is received that establishes one or more bases that warrant consideration by the Board of Directors, or if an amended request for procedural review is filed, the Executive Vice President shall bring the matter before the Board of Directors for consideration at a future meeting after all parties have been notified of the request for procedural review, or at a special meeting called by the President for that purpose. The Board of Directors shall be supplied with copies of the written request for procedural review and applicable portions of the written case file.
2.2 On a procedural review, the decision of the Board of Directors shall be based on the written materials submitted. The Board of Directors may, if they deem it appropriate, call both parties to a procedural review hearing to hear the basis of the procedural review, but no new evidence shall be received.
2.3 A representative(s) of the Hearing Panel or the Hearing Panel itself which heard the case shall be present at the Board of Directors meeting when the procedural review is being considered in order to give input to the Board of Directors regarding the case.
2.4 If the Board of Directors determines that a substantial procedural error occurred or a Member was otherwise deprived of due process, the deposit shall be returned to the appellant. If the Board of Directors determines that due process was served, the money deposited by the appellant shall pass into the general treasury of the Board.
Section 3 BOARD OF DIRECTORS’ DECISION ON ARBITRATION PROCEDURAL REVIEW: After all procedural remedies provided for in the Board’s procedures have been exhausted, a Member is not precluded from asserting any legal rights to which the Member is entitled.
If the award is confirmed by the Directors following a procedural review, the non-prevailing party shall have an additional twenty (20) days to institute any legal challenge to the validity of the arbitration award deemed appropriate and to notify the Board in writing of such legal challenge. After twenty (20) days, if written notice of a suit challenging the validity of the award has not been received by the Board, the funds shall be released and paid to the prevailing party. If written notification is received during the twenty (20) day period, the funds will be held in escrow pending the determination of the matter by a court of competent jurisdiction.
If the non-prevailing party does not request the Board to conduct a procedural review during the twenty (20) day period following service of the award, then written notification that a legal challenge has been instituted must be received within the twenty (20) days following service of the award. Failure to provide written notification that a suit challenging the validity of the award has been filed within twenty (20) days following service of the award will result in the award being paid from the Board’s escrow to the prevailing party.
Section 4 JUDICIAL ENFORCEMENT: Assertion of such legal rights in the courts does not violate Article 14 of the Code of Ethics. The exercise of such legal rights by a Member would result in judicial review. In instances where a Member fails to comply with an arbitration award, it is recommended that the award recipient seek judicial enforcement, which results in judicial review and, absent any showing of deprivation of due process, the judicial review will generally affirm the award rendered through the arbitration process and will enable the recipient to have it enforced.
At the discretion of the Board of Directors, the Board may support the request for judicial enforcement in the court, and at the further discretion of the Board of Directors reimburse the individual, in whole or part, for costs incurred in seeking such judicial enforcement if the court does not grant reimbursement of legal costs to the plaintiff. The Board of Directors may also choose to utilize the NAR Arbitration Award Enforcement Fund to defray a portion of the costs incurred by reimbursement.
ARTICLE 8 - INTERBOARD ARBITRATION
Section 1 ESTABLISHMENT OF INTERBOARD ARBITRATION: By becoming and remaining a Member of the National Association of Realtors®, each Member Board is required to provide and participate in interboard arbitration when arbitrable issues arise between a Board Member and a Member of another Board within the state. The arbitration should be arranged by the two (2) Boards having Members involved in an arbitrable controversy. Interboard arbitration shall be invoked only when the parties involved are Members of different boards, with neither party sharing membership in the same Board. All requests for interboard arbitration must be made within six (6) months from the date of closing of the transaction involved in the dispute.
Section 2 INITIATION OF PROCEDURES: Interboard arbitration is initiated by the written request of the principal broker of a firm to the Board of which the broker is a Member, indicating the nature of the controversy and the amount of the dispute and an interboard arbitration deposit fee of $100. The Grievance Advisory Committee will determine whether a properly arbitrable matter exists. If arbitrable, the matter will be forwarded to the Respondent’s Grievance Committee to determine arbitrability.
Section 3 SELECTION OF THE HEARING PANEL: Each Board participating in the interboard arbitration procedure shall select one Member of their Professional Standards Committee to serve on the Hearing Panel. The Members so selected shall agree upon the third Member of the Panel, who shall be from a neutral Board where neither party is a Member. The three (3) Arbitrators shall select a Chair of the Panel. The hearing is generally held at the Chair’s Board office.
Section 4 ADMINISTRATION: A complete booklet outlining the interboard arbitration procedure will be sent to you upon initiation of a request for interboard arbitration.
ARTICLE 9 - INTERSTATE ARBITRATION
The interboard arbitration method as outlined above may also be utilized for the conduct of arbitration between Board Members of different Boards in different states, subject to the parties voluntary agreement in advance to accept the place, date, and time established by the Hearing Panel chosen and to pay all costs of such arbitration as may be directed by the Hearing Panel. This provision applies provided the state in which the arbitration is held, permits binding arbitration. Or, alternatively, if a Board Member voluntarily agrees to travel to the Board having jurisdiction of the other Board Member in another state, and to submit to arbitration by that Board. The Board shall provide arbitration as requested if it deems the controversy an arbitrable matter. Interstate arbitration is further subject to a Board’s right to decline to arbitrate a controversy as outlined in Article 2, Section 7.
NOTE: The Cincinnati Area Board of Realtors® Arbitration Manual is designed as a general procedures manual on the basic precepts of arbitration. Any areas not inclusive in this manual may be supplemented by the National Association of Realtors® Professional Standards Manual.
Amended August 24, 1990; November 19, 1990; September 27, 1991;
December 16, 1992; February 26, 1993; December 15, 1993; February 1999; December 2003