Rules

Mediation/Arbitration Rules for the Association of Professional Arbitrators and Mediators, L.L.C. (including Commercial, Construction, Consumer, Employment, Fairest Offer, and Expedited Versions)

As Amended and Effective January 1, 2006.

PREAMBLE

The Association of Professional Arbitrators and Mediators, L.L.C. is dedicated to resolving disputes amicably and in a commercially efficient manner.

The Association of Professional Arbitrators and Mediators, L.L.C. has promulgated rules governing both mediation and arbitration. When the parties have agreed to mediation, the Mediation Rules apply. When the parties have agreed to arbitration, the Arbitration Rules apply. When the parties have agreed to mediation/arbitration, the Mediation Rules apply and, if the mediation does not resolve the dispute, the Arbitration Rules apply. The Definitions (Rule 1); Version of Arbitration Rules (Rule II); Mediation and Mediation/Arbitration Clauses (Rule III); and Administrative Fees (Rule IV) apply to all APAM Mediations and Arbitrations.

When adopted by the parties, the APAM Rules constitute an agreement between the parties themselves and an agreement between each party and the Association of Professional Arbitrators and Mediators, L.L.C.

TABLE OF CONTENTS

I. Definitions
II. Versions of Arbitration Rules
III. Mediation and Mediation/Arbitration Clauses
IV. Administrative Fees
V. Mediation Rules
M1. Agreement of Parties to Mediate
M2. Submission to Mediation
M3. Request for Mediation
M4. Appointment of Mediator
M5. Qualifications of Mediator
M6. Mediator Vacancies
M7. Representation of Parties
M8. Logistics of Mediation Sessions
M9. Identification of Matters in Dispute
M10. Authority of Mediator
M11. Privacy of Mediation Sessions
M12. Confidentiality
M13. No Stenographic Record of Mediation Sessions
M14. Termination of Mediation
M15. Exclusion of Liability and Waiver of Claims
M16. Interpretation and Application of Rules
M17. Payment of Costs, Fees, Expenses and Compensation
VI. Arbitration Rules
A1. Agreement of Parties to Arbitrate
A2. Name of Panel
A3. Administrator and Delegation of Duties
A4. National Bank of Arbitrators
A5. Initiation under a Mediation/Arbitration Provision in a Contract
A6. Initiation under an Arbitration Provision in a Contract
A7. Initiation of Arbitration under a Submission
A8. Changes to Claim
A9. Applicable Versions of Rules
A10. Administrative Conference and Preliminary Conference
A11. Exchange of Information
A11.1. EXP. and CONSU. Exchange of Information
A12. Arbitration Position Paper and Attachments
A12.1. EXP. and CONSU. Arbitration Position Paper and Attachments
A13. Fixing of Locale
A14. Qualifications of an Arbitrator
A15. Appointment from Panel
A15.1. EXP. Appointment from Panel
A16. Number of Arbitrators
A17.Notice to Arbitrator of Appointment
A18. Disclosure and Challenge Procedure
A19. Vacancies
A20. Executive and Administrative Arbitrators
A21. Time of Hearing
A21.1. EXP. Time of Hearing
A21.2. FAIR. Time of Hearing
A22. Representation of Parties
A23. Stenographic Record
A24. Interpreters
A25. Privacy of and Attendance at Hearings
A26. Postponements
A27. Oaths
A28. Order of Proceedings
A29. Communication with Arbitrator
A30. Arbitration in the Absence of a Party or Representative
A31. Evidence at the Arbitration Hearing
A32. Evidence by Affidavit and Posthearing Filing of Documents or Other Evidence
A33. Inspection or Investigation
A34. Interim Measures
A35. Closing of Hearing
A36. Reopening of Hearing
A36.1. EXP. Reopening of Hearing
A37. Waiver of Oral Hearing
A38. Waiver of Objection to Rules
A39. Extensions of Time
A40. Serving of Notice
A41. Time of Award
A41.1. CONSU., EMP., and FAIR. Time of Award
A41.2. EXP. Time of Award
A42. Form of Award
A43. Scope of Award
A44. Consent Award upon Settlement
A45. Delivery of Award to Parties
A46. Correction of Award; Rehearing
A47. Release of Documents for Judicial Proceedings
A48. Applications to Court and Exclusion of Liability
A49. Costs, Expenses and Compensation
A50. Costs of Presenting Case
A51. Arbitrator’s Compensation
A52. Deposits
A53. Interpretation and Application of Rules
A54. Subpoenas
A55. Agreement to Modify Rules
A56. Amendments
A57. Waiver of Conflict of Interest

I. Definitions

Administrative Arbitrator refers to the Arbitration Panel member designated by APAM as the member responsible for administrative decisions affecting the arbitration. If an Arbitration Panel consists of a single arbitrator, the Administrative Arbitrator shall be that single arbitrator. If the Arbitration Panel consists of three arbitrators, the Administrative Arbitrator shall be one of the panel members.

Arbitration is a process in which each party presents its position on a dispute at a hearing to an arbitrator or arbitrators who make a final and binding decision.

Arbitration Panel is the panel of APAM arbitrators selected to resolve a dispute through arbitration. If the Arbitration Panel consists of a single arbitrator, the Arbitration Panel refers to that arbitrator. If the Arbitration Panel consists of three arbitrators then Arbitration Panel refers to those arbitrators collectively.

Executive Arbitrator is an APAM National Bank of Arbitrators member designated by APAM to resolve administrative, jurisdictional issues and conflicts of interest issues involving arbitrators, usually before an Arbitration Panel is selected. Unlike most Arbitration Panels, the Executive Arbitrator is selected by APAM, not the parties.

Mediation is a process in which the parties attempt to resolve their dispute with the assistance of a mediator. The mediator helps the parties reach a consensus and may suggest ways of settling their dispute, but may not impose a settlement on the parties.

Mediation-arbitration is a process in which the parties agree to first attempt to resolve their dispute through mediation. If mediation fails to produce a settlement within a specified time period, then the matter is referred to arbitration for a final and binding decision by an arbitrator or arbitrators.

National Bank of Arbitrators is the panel of qualified arbitrators who have agreed to arbitrate for APAM and from which Arbitration Panels are selected.

II. Versions of Arbitration Rules

IIa. The Arbitration Rules of the Association of Professional Arbitrators and Mediators, L.L.C. (“APAM”) vary slightly depending on the version of Rules selected by the parties. If no particular version is selected, the Commercial version applies by default.

The different versions of the Arbitration Rules have slightly different objectives. They are:

Commercial Version: Resolution by three (3) commercially adept arbitrators.

Construction Version: Resolution by three (3) arbitrators knowledgeable in the construction industry.

Consumer Version: Quick resolution, by a single arbitrator, the administration of which is paid for by the business and not by the consumer.

Employment Version: Resolution by a single arbitrator, the administration of which is paid for by the employer.

Fairest Offer Version: Rapid resolution by a single arbitrator who essentially selects the fairest of the binding offers submitted by the parties.

Expedited Version: Rapid resolution by a single arbitrator.

IIb. Different versions of the rules were crafted to maximize efficiency and minimize expense. A summary of the rule versions follows.

Commercial Rules

The APAM Commercial Rules are designed to maximize efficiency. The Arbitration Panel usually consists of three knowledgeable, commercial arbitrators selected by the parties based on preferential ranking. If the parties agree that the amount in controversy is less than $30,000, one arbitrator resolves the dispute.

As a cost-saving innovation, preliminary and procedural issues are decided by an Executive Arbitrator or, if the Arbitration Panel has been selected, by the Administrative Arbitrator appointed from the panel. This eliminates the necessity for the entire Arbitration Panel to convene over administrative issues.

The Commercial Rules provide for discovery and subpoenas. The parties must provide a position paper. An award must be rendered within 30 days and may be corrected if in error.

The Commercial Rules should be used to resolve all commercial and labor disputes except those involving construction (Construction Rules), employment (Employment Rules), transactions between a business and its customer (Consumer Rules), monetary disputes involving differences of opinion regarding values or damages (Fairest Offer Rules) and disputes that must be resolved on an emergency basis (Expedited Rules).

Construction Rules

The APAM Construction Rules are designed to resolve construction disputes efficiently. The Arbitration Panel usually consists of three arbitrators knowledgeable in construction practices, selected by the parties based on preferential ranking. If the parties agree that the amount in controversy is less than $30,000, one arbitrator resolves the dispute.

As a cost-saving innovation, preliminary and procedural issues are decided by an Executive Arbitrator or, if the Arbitration Panel has been selected, by the Administrative Arbitrator appointed from the panel. This eliminates the necessity for the entire Arbitration Panel to convene over administrative issues.

The Construction Rules provide for discovery and subpoenas. The parties must provide a position paper. An award must be rendered within 30 days and may be corrected if in error.

The Construction Rules should be used to resolve most construction disputes.

Employment Rules

The APAM Employment Rules are designed to resolve employment disputes without imposing a cost burden on the employee. Courts have generally been reluctant to enforce arbitration in the employment context if the employee is put at a disadvantage because of arbitration costs. However, if the employee is found to have filed a claim in bad faith, the employee can be assessed part of the cost of arbitration.

The Arbitration Panel usually consists of one arbitrator selected by the parties based on preferential ranking. However, if the amount in controversy exceeds $100,000, the dispute is resolved by a three-member Arbitration Panel.

As a cost-saving innovation, preliminary and procedural issues are decided by an Executive Arbitrator or, if the Arbitration Panel has been selected, by the Administrative Arbitrator appointed from the panel. This eliminates the necessity for the entire Arbitration Panel to convene over administrative issues.

The Employment Rules provide for discovery and subpoenas. The parties must provide a position paper. An award must be rendered within 15 days and may be corrected if in error.

The Employment Rules should be used to resolve employment (rather than labor) disputes.

Consumer Rules

The APAM Consumer Rules are designed to resolve disputes between businesses and their customers. In order to encourage arbitration and engender good will, the cost of the arbitration is borne by the business. However, if the customer is found to have filed a claim in bad faith, the customer can be assessed part of the cost of arbitration.

The Arbitration Panel usually consists of one arbitrator selected by the parties based on preferential ranking. However, if the amount in controversy exceeds $100,000, the dispute is resolved by a three-member Arbitration Panel.

As a cost-savings innovation, preliminary and procedural issues are decided by an Executive Arbitrator or, if the Arbitration Panel has been selected, by the Administrative Arbitrator appointed from the panel. This eliminates the necessity for the entire Arbitration Panel to convene over administrative issues.

The Consumer Rules provide for discovery and subpoenas. Usually, the parties are not required to provide a position paper. An award must be rendered within 15 days and may be corrected if in error.

The Consumer Rules should be used to resolve disputes between businesses and their customers when the disputes are likely to be routine. Otherwise, the Commercial Rules should be used.

Fairest Offer Rules

The APAM Fairest Offer Rules are designed to promote fairness and expediency in the arbitration process and to eliminate compromise awards.

The Arbitration Panel consists of a single arbitrator selected by the parties based on preferential ranking.

The parties are required to submit binding conforming offers early in the proceedings. The Arbitrator makes a finding independent of and without knowledge of the parties’ binding offers. The binding offer closest to the Arbitrator’s findings becomes the Arbitrator’s award.

As a cost-saving innovation, preliminary and procedural issues are decided by an Executive Arbitrator or, if the Arbitration Panel has been selected, by the Administrative Arbitrator appointed from the panel.

The Fairest Offer Rules provide for discovery and subpoenas. The parties must provide a binding offer and a position paper. An award must be rendered within 15 days and may be corrected if in error.

The Fairest Offer Rules should be used to resolve monetary disputes involving differences of opinion regarding values or damages. Unless there is a compelling reason not to, the Fairest Offer Rule should be preceded by mediation.

Expedited Rules

The Expedited Rules favor expediency at the expense of the discovery process. Consequently, the Expedited Rules should be used cautiously, and only where the parties to the dispute are likely to have equivalent knowledge of all relevant information.

In order to streamline the arbitration process, the single-member arbitration panel is appointed by the Executive Arbitrator without input from the parties.

Because of the emphasis on an expedited hearing, careful consideration should be given to whether the Expedited Rules should be used in a mediation/arbitration context.

Usually there is no discovery and no position paper. The hearing should be conducted within 30 days and the award rendered within 7 days of the hearing.

IIc. The version of the Rules detailed below applies to all arbitrations and to the Commercial Version unless a Rule applicable to another version is specified:

Commercial Version: COM. Construction Version: CONST. Consumer Version: CONSU. Employment Version: EMPT. Fairest Offer Version: FAIR. Expedited Version: EXP.

III. Mediation and Mediation/Arbitration Clauses:

IIIa. The parties may elect to mediate then, if unsuccessful, to arbitrate their disputes by including the following language in their contract:

“Any claim, dispute, or controversy by or among the parties hereto shall be submitted by the parties to mediation _______________________ (LOCATION) administered by the Association of Professional Arbitrators and Mediators, L.L.C. (“APAM”) pursuant to the then current Rules. If mediation fails to resolve the claim, dispute, or controversy, it shall be resolved by binding arbitration in _______________________ (LOCATION) administered by APAM pursuant to the APAM Arbitration Rules Commercial Consumer Construction Employment Fairest Offer Expedited (check one) version. The arbitrator(s) also shall determine the arbitrability of the claims, disputes, and controversies. The parties will abide by and perform any decision rendered. A judgment may be entered on the decision in any court having jurisdiction.”

Other language adopting the APAM Rules also is effective.

IIIb. The parties may elect to arbitrate their disputes by including the following language in their contract:

“Any claim, dispute, or controversy between or among the parties hereto shall be resolved by binding arbitration in ________________________ (LOCATION) administered by the Association of Professional Arbitrators and Mediators, L.L.C. (“APAM”) pursuant to the APAM Commercial Consumer Construction Employment Fairest Offer Expedited (check one) version. The arbitrator(s) shall also determine the arbitrability of the claims, disputes, and controversies. The parties will abide by and perform any decision rendered. A judgment may be entered on the decision in any court having jurisdiction.”

Other language adopting APAM Rules is also effective.

IIIc. The parties also may elect to mediate or mediate/arbitrate their dispute after it has arisen by executing Form SDTR-8 (Submission to Dispute Resolution).

IIId. By electing APAM rules, the parties: have contractually selected alternative dispute resolution rather than litigation; agree that any person or tribunal deciding the arbitrability of a dispute or whether a claim should be mediated should be informed of this election and of the party’s desire to resolve all issues in favor of mediation and/or arbitration under APAM rules; and agree that their agreement to elect mediation and/or arbitration shall be construed with the broadest possible scope in favor of mediation and/or arbitration.

IIIe. Although the mediator and arbitrator(s) may be attorneys, they do not represent any parties to the mediation or arbitration. The mediator and arbitrator(s) are neutrals without ties or allegiances to any of the parties to the mediation or arbitration.

IIIf. The APAM mediation is generally concluded by agreement of the parties or by a mediator’s declaration that further efforts at mediation are no longer worthwhile or would unduly delay arbitration. The APAM arbitration is generally concluded with the transmittal of the written opinion of the arbitrator(s). A judgment on the award may be entered in and enforced by a court having appropriate jurisdiction if necessary.

IV. Administrative Fees

APAM charges the initial filing fee and other fees, expenses, and compensation shown on the schedule in effect on the date the case is submitted to APAM. The charges do not cover court reporting services, room rental, or post-award charges incurred by the parties in enforcing a settlement or award.

V. Mediation Rules

M1. Agreement of Parties to Mediate

M1a. The parties may wish to submit or may be required by agreement to submit their dispute to mediation independently of or prior to arbitration. In mediation, the mediator assists the parties in their effort to reach a settlement, but does not have the authority to bind the parties to a decision or award. Mediation is administered by APAM in accordance with its Mediation Rules.

M1b. Whenever, by stipulation or in their contract, the parties have provided for mediation of existing or future disputes under the auspices of APAM or under these Rules, they shall be deemed (i) to have made these Rules, as amended and in effect as of the date of the submission of the dispute to APAM, a part of their agreement and (ii) to have authorized APAM to administer the mediation at their cost. All APAM decisions shall be binding on the parties. If an issue is raised as to whether the dispute must be submitted to mediation, the APAM Executive Arbitrator shall resolve that issue and that decision shall be binding on the parties.

M2. Submission to Mediation

Any party to a dispute may initiate mediation by filing with APAM a submission to mediation (Form STDR-8) or a written demand for mediation (Form DFM/A-4) or a similar agreement to mediate pursuant to these Rules, together with (when applicable) the nonrefundable Initial Mediation Fee. Where there is no submission to mediation or contract providing for mediation, a party may request that APAM invite another party or parties to join in a submission to mediation. Upon receipt of such a request, APAM shall contact the other parties involved in the dispute and attempt to obtain a submission to mediation.

M3. Request for Mediation

A request for mediation shall contain a brief statement of the nature of the dispute and the names, addresses, and telephone numbers of all parties to the dispute and their respective representatives, if known. The initiating party shall simultaneously file a copy of the request with the APAM and with every other party to the dispute.

M4. Appointment of Mediator

M4a. Upon receipt of a submission to mediation, APAM shall send simultaneously to each party an identical list of names of APAM mediators. Each party shall have ten days from the APAM transmittal date in which to strike up to three names objected to, number the remaining names in order of preference, and return the list to APAM. If a party does not return the list within the time specified, all mediators on the APAM list shall be deemed acceptable to that party.

M4b. From among the mediators who have not been stricken, and in accordance with the designated order of preference, APAM shall designate a mediator to serve.

M4c. If the agreement of the parties names an APAM mediator, that designation shall be honored.

M5. Qualifications of Mediator

M5(a). Except by the consent of all parties, no person may serve as a mediator in any mediation in which he has (i) a material financial or personal interest in the result of the mediation; or (ii) a current or prior relationship as attorney, agent, or contractor for any of the parties to the mediation; or (iii) a personal relationship to any of the parties to the mediation or (if a business) their officers or directors. Prior to accepting an appointment, a prospective mediator shall disclose to APAM any matter set forth above or any other circumstance likely to create an appearance of bias or prevent a prompt meeting with the parties. The mere fact that a mediator has a proprietary interest in or a managerial interest in APAM need not be reported and shall not be grounds for disqualification of a mediator.

M5(b). Upon receipt of such information, APAM shall either immediately replace the mediator with another mediator who meets the qualifications of Rule M5(a)or communicate the information to the parties for their comments.

M6. Mediator Vacancies

If any mediator shall become unwilling or unable to serve, APAM shall appoint another mediator who meets the qualifications of Rule M5(a).

M7. Representation of Parties

Any party to a mediation may be represented by a person(s) of the party’s choice. The names and addresses of such persons shall be communicated in writing to all parties and to APAM prior to the mediation hearing (See Forms STDR-8 and DFM/A-4). Mediators do not represent the parties to the mediation and nothing the mediators say in the mediation may be construed as legal advice.

M8. Logistics of Mediation Sessions

The mediator shall fix the date and the time of each mediation session. The mediation may be held at the appropriate office of APAM or at any other convenient location agreeable to the mediator and the parties.

M9. Identification of Matters in Dispute

At least five (5) days prior to the first mediation session, each party shall provide directly to the mediator a brief position paper setting forth his position with regard to the issues that need to be resolved. At the mediation session, the parties shall be expected to produce all material information reasonably required for the mediator to understand the issues presented. The parties shall mediate and address in their position papers all related disputes between or among them.

M10. Authority of Mediator

The mediator does not have the authority to unilaterally impose a resolution or settlement on the parties. The mediator shall attempt to help them reach a mutually satisfactory resolution of their dispute. The mediator is authorized to conduct both joint and separate meetings with the parties and to make recommendations for settlement. The mediator is authorized to end the mediation whenever the mediator or either party concludes further efforts at mediation would not contribute to a resolution of the dispute. The mediator is also authorized to cancel or terminate the mediation when it appears that mediation would unduly delay mandated arbitration.

M11. Privacy of Mediation Sessions

Mediation sessions are private. The parties and their representatives may attend, but other persons may attend only with the permission of the parties and the mediator.

M12. Confidentiality

Confidential information disclosed to a mediator by the parties in the course of the mediation shall not be divulged by the mediator. All position papers, records, reports, or other documents received by a mediator shall also be confidential. The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum. The parties shall maintain the confidentiality of the mediation and shall not introduce as evidence in any arbitration, court, or other proceeding:

a. views expressed or suggestions made by the mediator or a party with respect to a possible settlement of the dispute;
b. admissions made by another party in the course of the mediation proceedings;
c. proposals made or views expressed by the mediator;
d. the fact that another party had or had not indicated willingness to accept a proposal for settlement made by the mediator; or
e. any tentative agreement.

M13. No Stenographic Record of Mediation Sessions

There shall be no stenographic or other verbatim record of the mediation session.

M14. Termination of Mediation

The mediation shall be terminated:

a. by the execution of a settlement agreement by the parties;
b. by a declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile or would unduly delay arbitration; or
c. by a written declaration of a party or parties to the effect that the mediation proceedings are terminated.

M15. Exclusion of Liability and Waiver of Claims

M15a. Neither APAM nor any mediator may be made a party or a witness in court proceedings relating to the mediation. A party to a mediation or arbitration who sues or subpoenas APAM, a mediator, or an arbitrator agrees to pay all reasonable expenses of APAM, the mediator or the arbitrator (including attorneys’ fees and costs) in avoiding the court proceedings, attending the court proceedings and otherwise enforcing these rules.

M15b. Neither APAM nor any mediator shall be liable to any party for any act or omission in connection with any mediation conducted under these Rules. Each party agrees to hold harmless APAM and the mediator from any and all claims brought by such party of any nature, known and unknown, anticipated or unanticipated, involving the mediation or these Rules.

M16. Interpretation and Application of Rules

The mediator shall interpret and apply these Rules insofar as they relate to the mediator’s duties and responsibilities. All other Rules shall be interpreted and applied by the Executive Arbitrator.

M17. Payment of Costs, Fees, Expenses and Compensation

M17a. Generally, the initiating party shall pay the Initial Mediation Fee. Unless otherwise agreed by the parties or provided in these rules, the APAM fees, expenses, and compensation shall be the responsibility of and shared equally between or among each side of the mediated dispute. If there is a dispute as to the number or identity of sides to a dispute, the mediator shall make that decision. Prior to the mediation hearing, the parties responsible for the payment of APAM fees, expenses, and compensation may be required by APAM to post their share of an advance deposit to cover the estimated APAM fees, expenses, and compensation. In the event of a mediation pursuant to the Consumer or Employment Arbitration Rules, the business (rather than the consumer) or the employer (rather than the employee) shall pay all APAM fees, expenses, and compensation.

M17b. Each party shall pay his share of the fees, expenses, and compensation charged by APAM within 30 days of invoicing.

M17c. If APAM hires an attorney to collect fees, expenses and/or compensation, or to otherwise enforce these Rules, the party who has failed to pay and/or violated these Rules also shall pay APAM’s reasonable attorneys’ fees and costs. An APAM arbitrator may make an award in favor of APAM consistent with these Rules.

M17d. The costs and expenses of a party’s presentation shall be paid by the party making such presentation.

M17e. Unless otherwise agreed by the parties, a mediator shall be limited to two hours study time. Unless agreed to by the parties, the mediator’s time shall be limited to study time, session time, and travel time.

VI. Arbitration Rules

A1. Agreement of Parties to Arbitrate

A1a. The parties shall be deemed to have made these Rules, and, where applicable, the specific version of these Rules, a part of their arbitration agreement whenever they have provided for arbitration or mediation/arbitration pursuant to the Association of Professional Arbitrators and Mediators, L.L.C. (“APAM”) or under APAM Rules. These Rules apply once the mediation has been terminated when the parties have agreed to mediate/arbitrate. These Rules and any amendments to them shall apply in the form existing at the time the dispute is submitted to APAM.

A1b. The parties, by written agreement, may vary the procedures set forth in these Rules provided (i) the procedure is consistent with the spirit of these Rules and (ii) the procedure is not materially more burdensome to APAM (or the parties agree to compensate APAM for the additional burden). The arbitrator(s) may sever any provision of an arbitration agreement and may ignore any provision in these rules that would make the agreement procedurally or substantively unconscionable.

A1c. If, prior to the selection of an Arbitration Panel, an issue arises as to the arbitrability of a claim, that issue shall be resolved by the APAM Executive Arbitrator. If, after the selection of an Arbitration Panel an issue arises as to the arbitrability of a claim, that issue shall be resolved by the selected Arbitration Panel.

A1d. All decisions of the Executive Arbitrator, the Administrative Arbitrator, and the Arbitration Panel shall be binding on the parties.

A1e. A clause providing that a contract (or clause therein) must be interpreted in accordance with a particular state’s laws shall not be interpreted as waiving or limiting arbitration if that contract also contains an arbitration clause, even if the state law so elected limits or prohibits arbitration.

A1f. A party agreeing to arbitrate pursuant to APAM rules cannot waive his right to arbitrate unless he does so expressly in writing. Arbitration may proceed in the absence of a party in accordance with Rule A30.

A2. Name of Panel

Any arbitration panel constituted by the parties for the resolution of their dispute under these Rules shall be called the APAM Arbitration Panel.

A3. Administrator and Delegation of Duties

When parties agree to arbitrate under these Rules, or when they provide for arbitration by APAM and an arbitration is initiated under these Rules, they thereby authorize APAM to administer the arbitration at their cost. The authority and duties of the APAM may be carried out through such of APAM’s representatives as APAM may direct.

A4. National Bank of Arbitrators

APAM shall establish and maintain a National Bank of qualified arbitrators and shall appoint arbitrators to arbitrate disputes and to determine the arbitrability of disputes as provided in these Rules.

A5. Initiation under a Mediation/Arbitration Provision in a Contract

A5a. Arbitration under a mediation/arbitration provision in a contract or policy shall be initiated in the following manner:

(i) the mediator or, if no mediator has been selected, the APAM Executive Arbitrator shall declare the mediation terminated; and
(ii) APAM shall notify the parties that the arbitration process has commenced.

A5b. Each party shall file an answering statement (Form AS-2) to the position paper of the other party within ten days after notice from APAM that the arbitration process has commenced. The answering statement shall contain any challenge that the party has to the scope of arbitration and any counterclaim. If the arbitration is to be conducted under the Fairest Offer Rules, the answering statement shall contain a binding monetary offer. If a counterclaim is asserted, it shall state the nature of the counterclaim, the amount involved, if any, and the remedy sought. If a counterclaim is made, the appropriate fee shall be forwarded to APAM with the answering statement. If no answering statement is filed to a claim or counterclaim within ten days, it will be treated as a general denial of the claim. An answering statement must be filed if the arbitration is to be conducted under the Fairest Offer Rules (otherwise , the party failing, after notice, to provide an answering statement shall be deemed to have adopted the binding monetary offer of the other party). Failure to file an answering statement shall not operate to delay the arbitration. The denial or answer may assert a third-party claim against another person or entity, provided such third-party is obliged to arbitrate the subject of that party’s claim. The Executive Arbitrator is authorized to resolve any dispute over such joinder. Parties may not be joined into class actions or collective actions unless they have expressly agreed to such joinder.

A5c(1). Arbitration under the Commercial and Construction Rules requires a three-member Arbitration Panel.
A5c(2). Arbitration under the Fairest Offer Rules and Expedited Rules requires a single-member Arbitration Panel.
A5c(3). If the arbitration is under the Consumer or Employment Rules and the amount in controversy (excluding attorneys fees and costs) exceeds $100,000, then either party in its answering statement may demand a three-member Arbitration Panel. In the event of a dispute about the amount in controversy, there shall be a three-member Arbitration Panel unless (i) a party sends written notice to APAM and the other party(ies) contending that the amount in controversy is less than $100,000 and (ii) the Executive Arbitrator finds conclusively that it does not exceed $100,000. If the amount in controversy is found to less than $100,000, then the arbitration shall be before a one-member Arbitration Panel.

A5d. In an arbitration conducted under the Fairest Offer Rules, the binding monetary offers of the parties shall be presented directly to the APAM Executive Director who shall place the offers in a secure file and supply the APAM Administrative Arbitrator with only documents with the offers redacted therefrom. The Executive Director shall keep confidential and not disclose the binding monetary offers until after the arbitrator’s findings, as specified in Rule A43b.

The parties are strictly prohibited from disclosing or alluding to the binding monetary offers and shall take all steps necessary to prevent their disclosure.

The unauthorized or inadvertent disclosure to the arbitrator of one or more of the binding monetary offers shall not change the procedure for the resolution of the dispute under the Fairest Offer Rules.

A6. Initiation under an Arbitration Provision in a Contract

A6a. Arbitration under an arbitration provision in a contract or policy shall be initiated in the following manner:

(i) The initiating party (“Claimant”) shall, within the time period, if any, specified in the contract(s), give written notice to the other party (“Respondent”) of its intention to arbitrate (the “demand”), which notice shall contain a statement setting forth the nature of the dispute, the amount involved, if any, the remedy sought, and the hearing locale requested, and, if the arbitration is to be conducted under the Fairest Offer Rules, a binding monetary offer. (See Form DFA-3) and
(ii) The Claimant shall file at any office of APAM the demand and a copy of the arbitration provisions of the contract, together with the appropriate filing fee.

A6b. APAM shall give notice of such filing to the Respondent(s). A Respondent shall file an answering statement with APAM within ten days after notice from APAM, in which event the Respondent shall at the same time send a copy of the answering statement to the Claimant in the same manner as transmitted to APAM. For example, if a party faxes a statement to APAM, it shall also fax that statement to the other parties or provide an equally expeditious method of notice. The answering statement shall contain any challenge that the Respondent has to the scope of arbitration or to the relief or remedy sought and any counterclaim. If the arbitration is to be conducted under the Fairest Offer Rules, the answering statement shall contain a binding monetary offer. If a counterclaim is asserted, it shall contain a statement setting forth the nature of the counterclaim, the amount involved, if any, and the remedy sought. If no answering statement is filed within the stated time, it will be treated as a general denial of the claim. An answering statement must be filed if the arbitration is to be conducted under the Fairest Offer Rules (otherwise, the party failing, after notice, to provide an answering statement shall be deemed to have adopted the binding monetary offer of the other party). Failure to file an answering statement shall not operate to delay the arbitration.

A6c. The denial or answer may assert a third-party claim against another person or entity, if such third party is obliged to arbitrate the subject of that party’s claim. The Executive Arbitrator (or the Administrative Arbitrator if the Panel has been selected) is authorized to resolve any dispute over such joinder.

A6d(1). Arbitration under the Commercial and Construction Rules requires a three-member Arbitration Panel. A6d(2). Arbitration under the Fairest Offer Rules and Expedited Rules requires a single-member Arbitration Panel. A6d(3). If the arbitration is under the Consumer or Employment Rules and the amount in controversy (excluding attorneys fees and costs) exceeds $100,000, then either party in its answering statement may demand a three-member Arbitration Panel. In the event of a dispute about the amount in controversy, there shall be a three-member Arbitration Panel unless (i) a party sends written notice to APAM and the other party(ies) contending that the amount in controversy is less than $100,000 and (ii) the Executive Arbitrator finds conclusively that it does not exceed $100,000. If the amount in controversy is found to less than $100,000, then the arbitration shall be before a one-member Arbitration Panel.

A6e. In an arbitration conducted under the Fairest Offer Rules, the binding monetary offers of the parties shall be presented directly to the APAM Executive Director who shall place the offers in a secure file and supply the APAM Administrative Arbitrator with only documents with the offers redacted therefrom. The Executive Director shall keep confidential and not disclose the binding monetary offers until after the arbitrator’s findings, as specified in Rule A43b.

The parties are strictly prohibited from disclosing or alluding to the binding monetary offers and shall take all steps necessary to prevent their disclosure.

The unauthorized or inadvertent disclosure to the arbitrator of one or more of the binding monetary offers shall not change the procedure for the resolution of the dispute under the Fairest Offer Rules.

A7. Initiation of Arbitration under a Submission

A7a. Parties to any existing dispute may commence an arbitration under these Rules by filing at any regional office of APAM a written submission to arbitrate under these Rules, (Form STDR-8) signed by the parties. It shall contain a statement of the matter in dispute, the amount involved, if any, the remedy sought, and the hearing locale requested, together with the appropriate filing fee. If the arbitration is to be conducted under the Fairest Offer Rules, the answering statement shall contain a binding monetary offer.

A7b. In an arbitration conducted under the Fairest Offer Rules, the binding monetary offers of the parties shall be presented directly to the APAM Executive Director who shall place the offers in a secure file and supply the APAM Administrative Arbitrator with only documents with the offers redacted therefrom. The Executive Director shall keep confidential and not disclose the binding monetary offers until after the arbitrator’s findings, as specified in Rule A43b.

The parties are strictly prohibited from disclosing or alluding to the binding monetary offers and shall take all steps necessary to prevent their disclosure.

The unauthorized or inadvertent disclosure to the arbitrator of one or more of the binding monetary offers shall not change the procedure for the resolution of the dispute under the Fairest Offer Rules.

A8. Changes to Claim

After filing a claim, if either party desires to modify, amend or make any new or different claim or counterclaim, it shall be made in writing and filed with APAM, and a copy shall be mailed or transmitted to the other party, who shall have a period of ten days from the date of such mailing or receipt of such transmission within which to file an answer with APAM. A binding monetary offer under the Fairest Offer Rules may not be modified absent a finding by the Arbitrator of both good cause and prejudice. After appointment of the Arbitration Panel, however, no modified, amended, new or different claim may be submitted without the consent of the Administrative Arbitrator.

A9. Applicable Versions of Rules

All cases shall be administered in accordance with these Rules. The version of these Rules selected by the parties (i.e. commercial, construction, consumer, employment, fairest offer, expedited) shall apply to the arbitration. If no particular version has been specified, the commercial version shall apply.

A10. Administrative Conference and Preliminary Conference

A10a. At the request of any party or at the discretion of the Executive Arbitrator or Administrative Arbitrator, an administrative conference among APAM staff and the parties and/or their representatives will be scheduled in appropriate cases to expedite the arbitration proceedings. There is no case service fee an administrative conference.

A10b. Except in expedited cases, at the request of any party or at the discretion of the Executive Arbitrator or Administrative Arbitrator, a preliminary telephone conference among the parties and or their representatives and the Executive Arbitrator (or, if an Arbitration Panel has been selected, the Arbitration Panel) may be scheduled to identify the issues to be resolved, to stipulate to uncontested facts, to schedule hearings to resolve the dispute, and to consider other matters that will expedite the arbitration proceedings. There is no administrative fee for a preliminary conference. Each arbitrator shall charge for a preliminary conference the greater of (a) ½ hour or (b) actual time spent during the preliminary conference, but only if the conference exceeds 45 minutes.

A11. Exchange of Information

A11a. Consistent with the expedited nature of arbitration, the Administrative Arbitrator shall establish the extent of and schedule for (i) production of documents and other information and (ii) identification of witnesses to be called. The Administrative Arbitrator may allow other discovery such as depositions, interrogatories, requests for production and inspections.

A11b. Except (i) in cases under the Expedited and Consumer Rules or (ii) where the Administrative Arbitrator directs otherwise, the parties shall exchange no less than 30 days before the arbitration hearing, (1) all exhibits to be used at the arbitration hearing; (2) the names of all witnesses (except those to be called solely for impeachment) and (3) reports of any expert to be called.

A11c. The Administrative Arbitrator is authorized to resolve any dispute over this information exchange.

A11d. The information exchanged shall not be sent to the arbitrator(s) unless requested by the arbitrator(s).

A11e. Upon a finding of good cause the Administrative Arbitrator may allow a party to supplement the information provided in the simultaneous exchange.

A11.1. EXP. and CONSU. Exchange of Information

The Administrative Arbitrator may order the parties to exchange prior to the hearing names of witnesses and exhibits and other information necessary to avoid undue surprise, hardship, or prejudice.

A12. Arbitration Position Paper and Attachments

Except in cases under the Expedited or Consumer Rules, no later than three business days before the arbitration hearing, each party shall submit to the Administrative Arbitrator and to all other parties a position paper specifying: (1) the names of each witness to be called by such party (except those to be called solely for impeachment); (2) an itemized list of each exhibit to be introduced or referred to by such party; (3) any law such party deems controlling; and (4) a detailed proposed award. The parties may incorporate by reference any information previously provided to the other party provided it has been or is provided to the Arbitration Panel.

A12.1. EXP. and CONSU. Arbitration Position Paper and Attachments

The Administrative Arbitrator may order the parties to provide position papers if necessary to avoid undue surprises, hardship or prejudice.

A13. Fixing of Locale

The parties may agree on the locale where the arbitration hearing is to be held. If there is no agreement and a party objects to the locale requested by the other party, the Administrative Arbitrator shall have the power to determine the locale and its decision shall be final and binding.

A14. Qualifications of an Arbitrator

Any arbitrator appointed pursuant to these Rules or selected by the parties shall be subject to disqualification for the reasons specified in Rule A18.

A15. Appointment from Panel

A15a. Unless the parties have provided another method of appointment, the Arbitration Panel shall be appointed in the following manner.

A15a(1). Immediately after the filing of the demand or submission, APAM shall send simultaneously to each party an identical list of names of arbitrators from the APAM National Bank of Arbitrators. Each party shall have ten days from the APAM transmittal date in which to strike names objected to, number the remaining names in order of preference, and return the list to APAM. In a single-arbitrator case, each party may strike three names objected to. In a multi-arbitrator case, each party may strike five names objected to. If a party does not return the list within the time specified, all arbitrators named therein shall be deemed acceptable. A15a(2) From among the arbitrators who have not been stricken, and in accordance with the designated order of preference, APAM shall invite the acceptance of arbitrator(s) to serve. A15a(3) If an arbitrator is unable to accept or, if for any other reason, the appointment(s) cannot be made from the submitted lists, APAM shall have the power to make the appointment from among other members of the National Bank of Arbitrators without the submission of additional lists to the parties. Should a replacement arbitrator be necessary, the replacement shall be selected and appointed by APAM.

A15.1. EXP. Appointment from Panel

The arbitrator under the Expedited Rules (and any replacement should it be necessary) shall be selected and appointed by the Executive Arbitrator.

A16. Number of Arbitrators

A16a. If the arbitration agreement does not specify (either directly or indirectly by specifying a version of the Rules) the number of arbitrators, the dispute shall be heard and resolved by three arbitrators, a majority of whom may decide any issue and make any award.

A16b. Arbitrations under the Commercial and Construction Rules shall be resolved by a three-member Arbitration Panel, except that in the event the amount in controversy is less than $30,000, the controversy shall be resolved by a single-member panel.

A16c. Arbitrations under the Fairest Offer Rules and the Expedited Rules shall be resolved by a single-member Arbitration Panel.

A16d. Arbitrations under Consumer and Employment Rules shall be resolved by a single-member Arbitration Panel, except that in the event the amount in controversy (excluding attorneys fees and costs) exceeds $100,000, a party may require the controversy be resolved by a three-member panel.

A17. Notice to Arbitrator of Appointment

Notice of the appointment of an arbitrator, shall be sent to the arbitrator by APAM and the signed acceptance of the arbitrator shall be filed with APAM prior to the opening of the first arbitration hearing.

A18. Disclosure and Challenge Procedure

A18a. An arbitrator shall not serve on an Arbitration Panel if his impartiality would be affected for any reason. Such reasons would include (i) a material, financial or personal interest in the result of the arbitration; (ii) a current or prior relationship as an attorney, employee, agent, or contractor for any of the parties to the arbitration; or (iii) a personal relationship with any of the parties to the arbitration or with their principals or with the witnesses to testify at the arbitration. The mere fact that an arbitrator has a proprietary interest in or a managerial interest in APAM shall not be grounds for the disqualification of a mediator. If the affiliation is disclosed on the APAM website (aopaam.com) it is deemed to have been reported to the parties.

A18b. Before APAM staff provides to the parties the list of names of arbitrators from the National Bank of Arbitrators, it shall attempt to determine whether the arbitrators on that list are impartial.

A18c. If a party determines that an arbitrator is not impartial, it shall immediately notify the Executive Arbitrator in writing who shall investigate the claims and determine whether the challenged arbitrator should remain on the Arbitration Panel. The decision of the Executive Arbitrator shall be conclusive and binding on the parties.

A18d. Notwithstanding anything herein to the contrary, an arbitrator shall not be disqualified or considered partial merely because an award contains sums due APAM for fees, charges and compensation.

A19. Vacancies

If for any reason an arbitrator is unable to perform the duties of the office, the Executive Arbitrator may declare the office vacant. Vacancies shall be filled by APAM from its panel of arbitrators. In the event of a vacancy in a three-member case after the arbitration hearings have commenced, the Executive Arbitrator may do any of the following: (i) appoint a replacement arbitrator and begin the arbitration hearings anew; (ii) appoint a replacement arbitrator and allow the arbitration hearings to continue provided the replacement arbitrator first reviews the record of the arbitration hearings; (iii) order the arbitration proceedings to continue and be decided unanimously by both remaining arbitrators, but only if all parties agree to such procedure; or (iv) use his best efforts to obtain an agreement of the parties that would reduce the expense of a second arbitration hearing but, at the same time, would not jeopardize a just and equitable resolution of the dispute. The decision of the Executive Arbitrator shall be final and binding upon the parties.

A20. Executive and Administrative Arbitrators

A20a. The Executive Arbitrator shall be an arbitrator on the APAM National Bank of Arbitrators designated by APAM to resolve the disputes required to be resolved by the Executive Arbitrator under these Rules. The cost of the Executive Arbitrator shall be borne by APAM. The Executive Arbitrator must be impartial and is subject to the same challenges based on impartiality as any other arbitrator. The Executive Arbitrator’s decision shall be final and binding on the parties.

A20b. The single arbitrator in a single-arbitrator case and, in a multi-arbitrator case, the arbitrator on the panel designated by the Executive Arbitrator as the Administrative Arbitrator, shall independently resolve procedural issues, including issues of scheduling, discovery disputes, interim measures, etc. The Administrative Arbitrator’s decision shall be final and binding on the parties.

A21. Time of Hearing

The Administrative Arbitrator shall set the date, time, and duration of each hearing. APAM staff shall send a notice of hearing to the parties at least fifteen days in advance of the hearing date, unless otherwise agreed by the parties.

A21.1. EXP. Time of Hearing

Under the Expedited Rules every effort shall be made by APAM to conduct the arbitration hearing within thirty days of the demand for arbitration or, in cases of mediation/arbitration, within thirty days of the termination of the mediation. The Executive Director shall set the date, time, duration and place of each hearing, which setting may be modified by the arbitrator appointed to resolve the dispute.

A21.2. FAIR. Time of Hearing

Under the Fairest Offer Rules every effort shall be made by APAM to conduct the arbitration within one hundred and eighty days of the demand for arbitration or, in cases of mediation/arbitration, within one hundred and eighty days of the termination of the mediation. The Executive Director shall set the date, time, duration, and place of each hearing, which setting may be modified by the arbitrator appointed to resolve the dispute.

A22. Representation of Parties

Any party may be represented by counsel or other authorized representative provided the party intending to be so represented shall notify the other party and APAM of the name and address of the representative at least three days prior to the date set for the arbitration hearing at which that person is first to appear. When such a representative initiates an arbitration or responds for a party, such notice is deemed to have been given. Nothing said by the arbitrators should be considered legal advice. The fact that an attorney representing a party is also on the APAM National Bank of Arbitrators, or is an APAM mediator, or has a proprietary or managerial interest in APAM shall not be grounds to disqualify the attorney nor grounds to disqualify APAM.

A23. Stenographic Record

Any party desiring a stenographic or other verbatim record shall make arrangements directly with a stenographer or other recorder and shall notify the other parties of these arrangements in advance of the hearing. The requesting party or parties shall pay the cost of the record. If the transcript is agreed by the parties to be, or determined by the Administrative Arbitrator to be, the official record of the proceeding, it must be made available to the Arbitration Panel and to the other parties for inspection, at a date, time, and place determined by the Administrative Arbitrator.

A24. Interpreters

All arbitration proceedings shall be conducted in English, either directly or indirectly through an interpreter. Any party wishing an interpreter shall make arrangements with an interpreter and shall pay the costs of the service.

A25. Privacy of and Attendance at Hearings

The Arbitration Panel shall maintain the privacy of the arbitration hearings unless the law provides to the contrary. The Administrative Arbitrator shall otherwise have the power to require the exclusion of any witness, other than a party, during the testimony of any other witness. It shall be discretionary with the Administrative Arbitrator to determine the propriety of the attendance of any person other than a party.

A26. Postponements

For good cause shown the Administrative Arbitrator may postpone any hearing.

A27. Oaths

Before proceeding with the first arbitration hearing, each arbitrator shall commit to complying with these Rules and may take an oath of office (and, if required by law, shall do so). The Arbitration Panel may require witnesses to testify under oath and, if it is required by law or requested by any party, shall do so.

A28. Order of Proceedings

A28a. An arbitration hearing shall be opened by the Administrative Arbitrator stating the date, time, and place of the hearing, the presence of the Arbitration Panel and the presence, or absence, of the parties and their representatives, if any.

A28b. The Arbitration Panel may, at the beginning of the hearing, ask for statements clarifying the issues involved. In some cases, part or all of the above will have been accomplished at the preliminary conference conducted by the Executive Arbitrator or Administrative Arbitrator pursuant to Rule A10.

A28c. The claimant shall then present evidence to support his claim. The respondent shall then present evidence supporting his defense. Witnesses for each party shall submit to questions or other examination. The Administrative Arbitrator has the discretion to vary this procedure but shall afford a fair and equivalent opportunity to all parties for the presentation of any material, relevant and non-duplicative evidence.

A28d. Exhibits, when offered by either party, may be received in evidence by the Arbitration Panel. The names and addresses of all witnesses and a description of the exhibits in the order received shall be made a part of the record by the Administrative Arbitrator.

A29. Communication with Arbitrator

Except as provided by Rule A11 or through the Executive Arbitrator or Administrative Arbitrator, there shall be no direct communication between the parties and an arbitrator other than at a hearing, unless the parties and the arbitrator agree otherwise. Any other oral or written communication from the parties to the arbitrator(s) shall be directed to APAM for transmittal to the Executive Arbitrator or to the Arbitration Panel.

A30. Arbitration in the Absence of a Party or Representative

Unless the law provides to the contrary, the arbitration may proceed in the absence of any party or representative who, after due notice, fails to attend or fails to obtain a postponement. An award shall not be made solely based on the default of a party. The Arbitration Panel shall require the party who is present to submit such evidence as the Arbitration Panel may require for the making of an award. In the case of an arbitration conducted under the Fairest Offer Rules, if a party or representative fails after due notice to attend the arbitration hearing, the arbitrators can enter an award in accordance with the opposing party’s binding monetary offer, as provided in Rule A43.

A31. Evidence at the Arbitration Hearing

A31a. The parties may offer such non-duplicative evidence as is relevant and material to the dispute and shall produce such evidence as the Arbitration Panel may deem necessary to an understanding and determination of the dispute. An arbitrator or other person authorized by law to subpoena witnesses or documents may do so upon the request of any party or independently, to the fullest extent allowed by law. (See Form S-9)

A31b. The Administrative Arbitrator shall be the judge of the relevance and materiality of the evidence and testimony offered, and conformity to state or federal legal rules of evidence shall be at the option of the arbitrator (or, if there is a panel of arbitrators, at the option of the majority of the panel).. All evidence shall be taken in the presence of all of the Arbitration Panel and all of the parties, except where any of the parties is absent in default or has waived the right to be present.

A32. Evidence by Affidavit and Posthearing Filing of Documents or Other Evidence

A32a. The Arbitration Panel may receive and consider the evidence of witnesses by affidavit, but shall give it only such weight as the Arbitration Panel deems it entitled to after consideration of any objection made to its admission.

A32b. If the parties agree or the Administrative Arbitrator directs that documents or other evidence be submitted to the Arbitration Panel after the hearing, the documents or other evidence shall be sent to the Arbitration Panel and the other party.

A33. Inspection or Investigation

Should an Arbitration Panel find it necessary to make an inspection or investigation in connection with the arbitration, the Administrative Arbitrator shall so advise the parties. The Arbitration Panel shall not make an inspection if all parties object. If all parties do not object, the Administrative Arbitrator shall set the date and time and shall notify the parties. Any party who so desires may be present at such an inspection or investigation. In the event that one or all parties are not present at the inspection or investigation, the Administrative Arbitrator shall make a verbal or written report to the parties and afford them an opportunity to comment.

A34. Interim Measures

The Executive Arbitrator (or, in the event the Arbitration Panel has been selected, the Administrative Arbitrator) may direct whatever interim measures are deemed necessary with respect to the dispute, including measures to enjoin the parties, for the conservation of property, without prejudice to the final determination of the dispute. Such interim measures may be taken in the form of an interim award and the Executive Arbitrator (or, in the event the Arbitration Panel has been selected, the Administrative Arbitrator) may require a party to post security for such measures.

A35. Closing of Hearing

A35a. Before closing an arbitration hearing, the Administrative Arbitrator shall specifically inquire of all parties whether they have any further proof to offer or witnesses to be heard. Upon receiving negative replies, or if satisfied that the record is materially complete, the Administrative Arbitrator shall declare the hearing closed.

A35b. If briefs are to be filed, the hearing shall be declared closed as of the final date set by the Administrative Arbitrator for the receipt of briefs. If documents are to be filed as provided in Rule A32 and the date set for their receipt is later than that set for the receipt of briefs, the later date shall be the date of closing the hearing. The time limit within which the Arbitration Panel is required to make the award shall commence to run, in the absence of other agreements by the parties, upon the closing of the hearing.

A36. Reopening of Hearing

For good cause shown the hearing may be reopened by the Administrative Arbitrator at any time before the award is made and shall have 30 days from the closing of the reopened hearing within which to make an award.

A36.1. EXP. Reopening of Hearing

A hearing may not be reopened absent a showing of prejudice.

A37. Waiver of Oral Hearing

The parties may provide, by written agreement, for the waiver of arbitration hearings in any case and submission of the dispute solely based upon written documents and written presentations.

A38. Waiver of Objection to Rules

Any party who proceeds with the arbitration after knowledge that any provision or requirement of these Rules has not been complied with and who fails to timely interpose an objection shall be deemed to have waived the right to object.

A39. Extensions of Time

The parties may modify any period of time by mutual agreement. The Executive Arbitrator or the Administrative Arbitrator if a panel has been selected may for good cause extend any period of time established by these Rules, except the time for making the award. APAM shall notify the parties of any extension.

A40. Serving of Notice

A40a. 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 on a party by mail addressed to the party or its representative at the last known address or by personal delivery. APAM and the parties may also use facsimile transmission, telex, telegram, or other written forms of communication to give the notices required by these Rules. The parties shall use the same (or no more delayed) method when giving notice to the other party or parties as it does when giving notice to APAM.

A40b. The parties shall accept all notices from APAM staff by telephone. Should there be a failure by APAM to confirm in writing any notice hereunder, the proceeding shall nonetheless be valid if notice has, in fact, been received. The term “notice” as used in this Rule 40b shall not refer to the arbitrator’s award. Notice of the award and of the award itself shall be given in writing to the parties.

A41. Time of Award

In arbitrations conducted under the Commercial or Construction Rules, the Arbitration Panel shall endeavor to issue the award promptly and, unless otherwise agreed by the parties, within 30 days from the date of closing of the hearing or, if oral hearings have been waived, from the date of the transmittal of the final statements and proof to the Arbitration Panel.

A41.1. CONSU., EMP., and FAIR. Time of Award

The Arbitration Panel shall use its best efforts to issue the award within 15 days from the date of closing of the hearing or, if oral hearings have been waived, from the date of the transmittal of the final statements and proof to the Arbitration Panel.

A41.2. EXP. Time of Award

The Arbitration Panel shall use its best efforts to issue the award within 7 days from the date of closing of the hearing or, if oral hearings have been waived, from the date of the transmittal of the final statements and proof to the Arbitration Panel.

A42. Form of Award

The award shall be in writing and shall be signed by the Administrative Arbitrator or by a majority of the Arbitration Panel. Notwithstanding anything to the contrary, it shall be executed in the manner required by law.

A43. Scope of Award

A43a. The Arbitration Panel may grant any remedy, relief that the Arbitration Panel deems just and equitable and within the scope of the agreement of the parties and these Rules, including, but not limited to, specific performance. The Arbitration Panel may, in the award, assess arbitration fees, expenses, and compensation as provided in these Rules in favor of any party and, in the event that any administrative fees or expenses are due APAM, in favor of APAM.

A43b. In an arbitration conducted under the Fairest Offer Rules, the arbitrator shall make a finding independent of the binding monetary offers of the parties. After delivering his finding to the parties, the Executive Arbitrator shall disclose to the arbitrator the binding monetary offers of the parties. The arbitrator shall enter as his award the binding monetary offer closest to his finding. If necessary, the arbitrator may engage an actuary to determine which binding monetary offer is closest to his finding.

A44. Consent Award upon Settlement

A44a. If the parties settle their dispute during the course of the Administrative Arbitrator, the arbitrator(s) may, upon the written agreement of those parties, set forth the terms of the agreed settlement in an award. Such an award is referred to as a consent award.

A44b. If the parties settle their dispute during the course of arbitration, the Executive Arbitrator (or, if an Arbitration Panel has been appointed, the Administrative Arbitrator), upon (i) application of either party, (ii) presentation of written evidence of settlement and (iii) on representation that one party has defaulted on the settlement agreement, shall enter an arbitration award consistent with that written settlement. Such an award is referred to as an award enforcing settlement.

A45. Delivery of Award to Parties

The award shall be immediately delivered to the parties in accordance with Rule A40.

A46. Correction of Award; Rehearing

Within ten days after the transmittal of an award, any party, upon notice to the other parties, may request that the Arbitration Panel correct any clerical, typographical, technical, or computational error in the award or any material error in the award. The other parties shall be given ten days to respond to the request. The Arbitration Panel shall consider the request and response and rule within ten days accordingly and immediately notify the parties of its decision. The parties have no right to an additional arbitration hearing. If a court orders that a matter be remanded for rehearing or further action, the same panel shall take such action, if possible. APAM shall be allowed to take such action, regardless of whether the deadline for rendering the award has passed.

A47. Release of Documents for Judicial Proceedings

Upon the written request of a party and the payment of all fees, expenses and compensation, APAM shall furnish to the party, at the requesting party’s expense, certified copies of any papers in APAM’s possession that may be required in judicial proceedings relating to the arbitration.

A48. Applications to Court and Exclusion of Liability

(i) Absent a court order to the contrary, no judicial proceeding by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party’s right to arbitrate.
(ii) Neither APAM nor any arbitrator in a proceeding under these Rules shall be made a party in court proceedings relating to the arbitration.
(iii) 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.
(iv) Neither APAM nor any arbitrator shall be liable to any party for any act or omission in connection with any arbitration conducted under these Rules.
(v) A party to an arbitration who sues or subpoenas APAM (including an employee of APAM) or an arbitrator agrees to pay all reasonable expenses of APAM and arbitrator (including attorneys’ fees and costs) in avoiding the court proceedings, attending the court proceedings, and otherwise enforcing these Rules.
(vi) Each party agrees to hold harmless APAM (including its employees) and the arbitrators from any and all claims brought by such party of any nature, known and unknown, anticipated and unanticipated, involving the arbitration or these Rules.

A49. Costs, Expenses and Compensation

49a. APAM shall prescribe an initial filing fee and other fees to compensate it for the cost of providing administrative services. The fees in effect when the case is submitted to APAM shall be applicable. The filing fee shall be advanced by the claimant, subject to final apportionment by the Arbitration Panel in the award. However, under Consumer and Employment Rules, the consumer and employee need not pay the initial filing fee. The respondent (i.e. the company or the employer) shall pay the initial filing fee and all other fees, expenses and compensation upon being invoiced by APAM.

49b. APAM may require that (i) fees, expenses and compensation be paid current and (ii) a deposit against expected fees, expenses and compensation be paid prior to an arbitration hearing. All fees, expenses and compensation and deposits are payable by the parties on demand.

49c. If APAM hires an attorney to collect fees, expenses and/or compensation, or to otherwise enforce these Rules, the party who has failed to pay and/or violated these Rules will also pay APAM’s reasonable attorneys’ fees and costs. An arbitrator may make an award in favor of APAM consistent with these Rules.

49d. Unless these Rules require or the Arbitration Panel decides differently, APAM fees, expenses and compensation and deposits in advance of expected fees, expenses and compensation shall be the responsibility of and are to be shared equally between or among each side of the arbitration dispute. If there is a dispute as to the number or identity of sides to a dispute, the Administrative Arbitrator shall make that decision which shall be binding upon the parties.

49e. Notwithstanding anything herein to the contrary, under Consumer and Employment Rules, the consumer and the employee shall not be required to advance fees, expenses or compensation and shall not be required to pay fees, expenses, or compensation unless the Arbitration Panel finds that the consumer or employee filed the claim in bad faith, in which case it may assess as part of the arbitration award a maximum of one-half of the fees and expenses to such consumer or employee.

A49f. Notwithstanding Rule A49e, a party rescheduling a hearing shall pay the rescheduling charge. A party amending its claim or counterclaim shall bear the charge associated therewith.

A50. Costs of Presenting Case

The cost of presenting a case shall be paid by the party presenting the case. The expenses of witnesses for either side shall be paid by the party calling such witnesses unless the Administrative Arbitrator decides otherwise.

A51. Arbitrator’s Compensation

The fee for the arbitrators is to be paid by the parties in accordance with the award. A fee schedule is published by APAM. Any payment of the compensation of a arbitrator(s) shall be made through APAM and not directly by the parties to the arbitrator(s).

A52. Deposits

APAM, at its discretion, may require the parties to deposit in advance of any hearings such sums of money as it deems necessary to cover the arbitration fees, expenses and compensation and shall render an accounting to the parties and return any unexpended balance at the conclusion of the case.

A53. Interpretation and Application of Rules

The Executive Arbitrator, Administrative Arbitrator and/or Arbitration Panel shall interpret and apply these Rules insofar as they relate to the arbitrability of the dispute and the Arbitration Panel’s powers and duties. These Rules shall be interpreted and applied in favor of arbitration.

A54. Subpoenas

The Arbitration Panel shall have the broadest subpoena powers provided by state and federal law. Subpoenas shall be requested in writing one week in advance of when they are needed. They will be mailed to and served by the requesting party.

A55. Agreement to Modify Rules

These Rules may be modified provided that the parties and the Executive Arbitrator or Administrative Arbitrator agrees to do so or unless the Executive Arbitrator or Administrative Arbitrator find it necessary after a showing of good cause.

A56. Amendments

Rules, forms, and schedule of fees are subject to periodic change and updating. To ensure that you have the most current information, see the APAM Web Site at www.aopaam.com.

A57. Waiver of Conflict of Interest

By invoking arbitration under the APAM rules, the parties acknowledge that attorneys who are also on APAM’s National Bank of arbitrators and/or mediators, and attorneys who may have a proprietary and/or managerial interest in APAM, and attorneys in the firms of such affiliated attorneys may represent parties in an APAM arbitration and/or mediation, provided that such affiliated attorneys disclose their affiliation with APAM at or before the arbitration or mediation and such information is communicated to the parties pursuant to Rule A18. The fact that an attorney is affiliated with APAM shall not be grounds to disqualify such attorney from such representation or to disqualify APAM from the arbitration, and all parties waive any conflict of interest in that regard. If an issue of disqualification or conflict of interest arises, the APAM Executive Arbitrator shall determine whether the arbitrator should be disqualified and shall inform the parties of his decision, which shall be conclusive and binding.