Rules

These rules apply to all arbitrations that RMAS conducts.

Rule 1. Purpose and Construction. The arbitrator shall construe these rules to secure the just, speedy, and inexpensive determination of every dispute.

Rule 2. Definitions.

a. “Arbitration clause” means the written agreement of the parties to arbitrate, whether it is contained in a transactional document or in a separate document.

b. “Claim” means a writing submitted to RMAS that complies with Rule 5.

c. “Claimant” means the person or entity that submits the Claim, and “Respondent” means each person or entity the Claimant seeks relief against. Where these rules require service of a document on the Claimant or Respondent, it is sufficient to serve the document on counsel for that party if that party is represented.

d. “Date of Notification” means the date RMAS sends notice of the claim to the Respondent by certified mail.

e. “Days” means calendar days. Weekends and holidays are not excluded in counting days.

f. “Hearing” means a telephonic or in person hearing.

g. “Initial Conference” means the telephone conference conducted pursuant to Rule 10.

h. “Rules” means these rules.

i. “Writing” means a written or electronic document delivered in person, by mail, fax, or email. Where these rules require written notification, an email satisfies that requirement.

Rule 3. Duty of Cooperation. The parties and their counsel, if represented, shall cooperate with each other and with the arbitrator in scheduling, and shall be reasonably prompt in responding to communications from other parties, other counsel, and the arbitrator. Repeated violations of this duty are a factor the arbitrator may consider in awarding attorney’s fees, costs, and arbitration expenses pursuant to Rule 18.

Rule 4. Applicable Law.

a. Substantive Law. The arbitrator will endeavor to apply the substantive law of the state specified in the document containing the arbitration clause if the document specifies that the law of a particular state applies. If the document contains no such language, or if the arbitrator is uncertain as to the law of the state specified in the document pertaining to a substantive issue after giving the parties an opportunity to brief the issue, the arbitrator will decide the issue based on principles of law and equity recognized in the United States.

b. Procedural Law. The arbitrator will decide all procedural matters, including but not limited to discovery and disclosure disputes and scheduling issues.

c. Discovery. There is no right to engage in discovery, but the parties may agree to discovery and the arbitrator may allow reasonable discovery upon request. The arbitrator will not allow depositions, except by agreement of all parties or for the preservation of testimony. The parties should be prepared discuss discovery during the Initial Conference. See, Rule 11.

d. Rules of Evidence. RMAS does not use the strict rules of evidence that apply in court. The arbitrator may accept or reject evidence that the arbitrator believes will help in deciding the dispute. The arbitrator may consider hearsay if he feels it is reliable, but the arbitrator will generally consider hearsay less credible than testimony from a witness with personal knowledge of relevant facts that is subject to cross-examination. The applicable law regarding privileges and work product applies.

Rule 5. Procedures / Modifications Agreed to by the Parties. Except as otherwise specified in these rules, the parties may agree on procedures not specified in these rules that are consistent with applicable law, and may also agree to modify the procedures set forth herein. All parties must agree to the procedures or modifications, and the parties must promptly notify the arbitrator in writing of the agreed procedures or modifications.

Rule 6. Starting Arbitration. Any Claimant may begin arbitration by submitting a Claim to RMAS pursuant to this rule. The Claimant shall mail the Claim to RMAS, P.O. Box 617, Nederland, Colorado 80466, or deliver it to RMAS, 110 Snyder Street, 2nd Floor, Nederland, Colorado 80466. The Claimant may also email the Claim to admin@e-arb.com, but RMAS will not act on the Claim until it receives the required fee. The Claim must include:

a. The name, address, telephone numbers, and email addresses of the Claimant and Respondent(s);

b. The name, address, telephone numbers, and email addresses of the Claimant’s lawyer, and of the Respondent’s lawyer, if known;

c. The date of the document containing the arbitration clause requiring the parties to arbitrate before RMAS;

d. The original document containing the arbitration clause or an exact copy of the document with a certification by the Claimant or its counsel that it is an exact copy of the original document;

e. If the claim arises out of a written agreement, a copy of that agreement.

f. A chronological summary of the significant relevant facts upon which the claim is based;

g. A summary of the Claimant’s legal theories;

h. A summary of the relief the Claimant seeks; and

i. The required fee.

Rule 7. Notice to Respondent. When RMAS receives a Claim it will notify the Respondent in writing and provide a copy of the Claim. RMAS will try to notify the Respondent that same day, but in no event will RMAS notify the Respondent more than 72 hours after it receives the Claim. RMAS will notify the Respondent by certified mail, return receipt requested. In addition, RMAS may at its discretion send duplicate notices to the Respondent by other methods in an effort to make sure the Respondent receives actual notice of the Claim. This rule does not require that RMAS receive a return receipt in order for the arbitration to go forward; the notice is effective on the Date of Notification.

Rule 8. Respondent’s Response. The Respondent shall have 14 days from the Date of Notification to submit a written Response to RMAS, unless the arbitrator grants additional time in writing for good cause. The Respondent shall provide the Response to RMAS in the manner provided for in Rule 6, and shall simultaneously provide a copy of the Response to the Claimant. The Response must include:

a. A statement admitting or denying that the Respondent agreed to arbitrate the Claim before RMAS;

b. A chronological summary of the significant relevant facts;

c. A summary of the Respondent’s defenses;

d. A summary of any counterclaim the Respondent asserts;

e. A summary of the relief the Respondent seeks; and

f. The required fee.

Rule 9. Denial of Agreement to Arbitrate. If the Response denies agreeing to arbitrate before RMAS, RMAS shall promptly contact the parties, or their counsel if represented, to arrange a telephonic hearing to resolve that issue. The arbitrator may conduct the hearing in person, rather than telephonically, if all parties agree. The arbitrator may hear testimony during that hearing and may consider documents or other evidence submitted prior to or during the hearing. The arbitrator will then issue a written ruling, which shall be final.

Rule 10. The Arbitrator. The arbitrator will be Mark Cohen unless he determines that he is unable to serve, in which case he will appoint the arbitrator. In that event these rules will nevertheless apply. In that event, the parties release RMAS and Mr. Cohen from any liability allegedly arising out of his appointment of the arbitrator.

Rule 11. The Initial Conference. Within 14 days of receiving the Response, or within 14 days of a ruling issued pursuant to Rule 9 that the Respondent agreed to arbitrate before RMAS, whichever occurs later, the arbitrator will conduct an initial conference by telephone. The matters to be addressed during the initial conference will include:

a. Whether the parties desire Internet arbitration, a Telephonic Hearing, or an In Person Hearing. If the arbitration clause does not specify one, the hearing will be an In Person hearing unless all parties agree otherwise;

b. Whether the parties have agreed on any procedural matters that modify or supplement these rules;

c. Discovery issues and timeline (not applicable in Internet Arbitration);

d. Scheduling the hearing, except in cases where the parties have agreed to Internet arbitration;

e. Motions, if any (not applicable in Internet Arbitration);

f. Stipulations, if any; and

g. Any other issue any party desires to raise.

Following the Initial Conference the arbitrator will email all parties an Order incorporating the matters decided during the Initial Conference, which will be the Initial Conference Order.

Rule 12. Internet Arbitration. If the arbitration clause requires Internet arbitration, or if all parties have agreed to Internet arbitration, the following procedures apply.

a. Within 14 days of the Initial Conference the Claimant shall submit to the arbitrator and the Respondent any evidentiary documents and/or written argument the Claimant wants the arbitrator to consider.

b. Within 14 days after the Claimant submits documents, the Respondent shall submit to the arbitrator and the Claimant any evidentiary documents and/or written argument the Respondent wants the arbitrator to consider.

c. Within 10 days after the Respondent submits documents, the Claimant may submit additional documents and/or argument.

d. Within 10 days thereafter the Respondent may submit additional documents and/or argument. Thereafter, the arbitrator will not consider any additional documents or argument unless all parties so agree in writing.

e. The arbitrator may at any time submit questions to the parties by email. All parties shall respond to the arbitrator by email within 7 days of the submission of the questions. The party responding must provide a copy of the response to all other parties.

f. When the arbitrator has reviewed all documents and arguments received, the arbitrator will enter a written award. If all required fees have been paid, RMAS will strive to send the award to all parties via email within 14 days of receiving the documents referred to in Rule 11(d) or within 14 days of receiving the last response to any question the arbitrator submitted to the parties.

g. Numbering of Documents. To expedite the process, and to help the arbitrator and the other parties understand the claims and arguments of a party, all documents submitted by a party shall be numbered consecutively. This will enable a party submitting a written argument on an issue to refer to the specific documents that party believes are relevant to that issue. The Claimant shall label its documents C-1, C-2, etc., and the Respondent shall label its documents R-1, R-2, etc.

h. Form of Documents Submitted to Arbitrator. The parties shall submit all documents in PDF or MS Word format, except that a party may submit spreadsheets in Excel and may submit photographs as JPEGs.

Rule 13. Telephonic Hearings and In Person Hearings. If the arbitration clause requires a telephonic or in person hearing, or if all parties have agreed to one, or if an in person hearing takes place by default, the following procedures apply.

a. Disclosures. Within 14 days of the Initial Conference each party shall submit to all other parties written disclosures that include the name, address, telephone numbers, and primary email address of each witness that party may call to testify at the hearing; copies of all documents that party intends to offer at the hearing; and a calculation of the party’s claimed damages. The parties shall supplement these disclosures as appropriate. Do not submit copies of the disclosures to the arbitrator.

b. Discovery. On the 15th day following the Initial Conference the parties may commence any discovery approved in the Initial Conference Order or any subsequent order. The parties must conclude discovery 30 days prior to the hearing.

c. Motions. These rules are designed to minimize the need for motions. Motions pertaining to the admissibility of evidence should generally be reserved for the hearing. Motions in the nature of a motion for summary judgment are strongly discouraged because in most cases there will be genuine issues of fact that can and should be resolved at the hearing. A party submitting a motion to the arbitrator shall simultaneously submit a copy of it to all other parties. The party responding to the motion shall have 10 days from the date the motion is submitted to file a response. The arbitrator will then rule on the motion and notify all parties of his ruling.

d. Exhibit Lists and Witness Lists. The parties shall exchange exhibit lists and witness lists at least 10 days prior to the hearing. The arbitrator may exclude exhibits and witnesses not previously disclosed.

e. Exhibit Books. Prior to the hearing each party shall prepare an Exhibit Book containing all exhibits that party will offer at the hearing. The parties shall exchange Exhibit Books at least 7 days prior to the hearing. The Exhibit Books shall consist of one or more three-ring binders. Each exhibit in an Exhibit Book shall be numbered. If the hearing will be a telephonic hearing it is each party’s responsibility to make sure a copy of its Exhibit Book is delivered to the arbitrator at least three days prior to the hearing. If the hearing will be an in person hearing, each party should bring a copy of its Exhibit Book to the hearing for the arbitrator. Each party should also bring a copy of its Exhibit Book for the witness. If a witness is to testify by telephone during a telephonic hearing and the party calling the witness intends to ask that witness about any exhibit, the party calling the witness must make certain that the witness has a copy of the exhibit at the time of the telephone testimony.

f. Briefs. The parties are not required to submit briefs; however, RMAS encourages briefs, particularly where the parties believe resolution of the dispute will require consideration of complex legal or evidentiary issues. Briefs in excess of 15 pages are discouraged.

g. Citation of Cases. If a party cites a court decision in a motion, brief or other filing, that party shall provide a copy of the decision to the arbitrator with the filing.

h. Place of Hearing. When there is to be an in person hearing, the parties may agree to any reasonable location. The hearing may take place at our office in Nederland, Colorado (20 miles west of Boulder), or at the place of business of one of the parties, or at some other agreed upon location. If the parties cannot agree on a location, the arbitrator will decide it. If the hearing takes place at the RMAS office in Nederland there is no charge for the use of the facility. If the hearing takes place elsewhere and it is necessary to rent a room for the hearing, that parties will equally bear that expense, subject to the provisions of Rule 17.

i. Recording of Hearings. RMAS will not provide a court reporter for the hearing. The arbitrator may electronically record testimony at a hearing for his own use, but the arbitrator will destroy any such recordings upon issuing the award. A party may at its expense have a court reporter present. A party may not record electronically record any portion of a hearing without the arbitrator’s approval.

j. Awards. When the hearing has been concluded the arbitrator will prepare a written award. The arbitrator will strive to complete the award within 21 days of the conclusion of the hearing. If all required fees and expenses have been paid, RMAS will send a signed copy of the award to all parties via email as soon as the arbitrator provides it. If all required fees and expenses have not been paid, RMAS will send an unsigned copy of the award to all parties via email as soon as the arbitrator provides it. In that situation a party that desires the arbitrator to sign the award may advance the fees and expenses owed by another party, in which case the arbitrator shall sign the award, as the arbitrator may modify it taking into account the advance of such fees and expenses by the party desiring the signed award. RMAS shall then send the signed award to the parties.

Rule 14. Correction of Award / Finality of Award. Within 7 day after RMAS sends the signed award to the parties, any party may request that the arbitrator correct any mathematical, typographical, or other similar error in the award. Any party opposing the request shall have 7 days from the request to file an objection. The arbitrator shall then correct the award if he believes it is appropriate or issue a written order denying the request. The arbitrator may also correct the award sua sponte within 7 days after RMAS sends the signed award to the parties. The award is final 8 days after RMAS sends the signed award to the parties, or if a party has requested a correction pursuant to this rule, on the date RMAS sends a signed corrected award to the parties or an order denying the request for correction.

Rule 15. Ex-Parte Communications. There shall be no ex-parte communications with the arbitrator. RMAS will facilitate scheduling, or the arbitrator will communicate with the parties by email, with copies to all parties.

Rule 16. Securing Witnesses and Documents for the Hearing. Upon request by a party, all other parties shall produce for the hearing all witnesses in their employ or under their control. The arbitrator may issue subpoenas for the attendance of witnesses or the production of documents in accordance with applicable law. In the event a party or witness objects to the subpoena that party or witness shall file an objection with the arbitrator. The arbitrator will promptly rule on the objection.

Rule 17. Authority of Arbitrator. Unless otherwise limited by the arbitration clause or applicable law, the arbitrator shall have plenary authority to take such actions as he deems appropriate to resolve the dispute consistent with Rule 1. The arbitrator has the same power and authority as a judge in a court of general jurisdiction. This includes but is not limited to authority to issue interim orders, enter injunctions, and impose sanctions.

Rule 18. Awards of Attorney’s Fees, Costs, and Arbitration Expenses. In his arbitration award the arbitrator may award some or all attorney’s fees, costs, and arbitration expenses (including the arbitrator’s compensation) to a party, unless the document containing the arbitration clause provides otherwise. If the document provides that the prevailing party shall be entitled to attorney’s fees, costs, and/or arbitration expenses, the arbitrator may nevertheless determine that neither party was the prevailing party unless the document containing the arbitration clause expressly precludes this.

Rule 19. Settlement. The parties may settle their dispute at any time prior to service of the award on them. In that event they shall prepare a proposed Consent Award and present it to the arbitrator for his approval.

Rule 20. Confidentiality. All arbitration matters are confidential. RMAS and the arbitrator will not disclose any arbitration documents or communications except as required in connection with any court challenge to or enforcement of an award, or unless otherwise ordered to do so by court of competent jurisdiction.

Rule 21. Arbitrator as Witness. The Parties may not call the arbitrator or any RMAS employee or agent as a witness in any litigation or proceeding involving any party and that relates to the dispute submitted to RMAS. The parties shall defend and/or pay the costs (including any attorneys’ fees) of defending the arbitrator and/or RMAS, its employees and agents, from any subpoenas from third parties arising out of the RMAS arbitration. All parties agree that neither the arbitrator nor RMAS (or its employees or agents) a necessary party in any litigation or proceeding relating to the dispute submitted to RMAS or the arbitration RMAS conducted. Neither the arbitrator nor RMAS (or its employees or agents) shall be liable to any party for any act or omission in connection with any arbitration conducted by RMAS, including any decision of the arbitrator to recuse himself.

Rule 22. Fees.

a. Each party shall deposit its share of fees and expenses as set forth in the RMAS fee policy. See, www.rockymountainarb.com/fees. The agreement of RMAS to provide arbitration services is jointly with the party and the law firm, lawyer, or other representative representing that party.

b. When a party fails to deposit the specified fees and expenses, the arbitrator may preclude that party from offering evidence in Internet Arbitration or at the hearing.

c. The parties are jointly and severally liable for the payments owed to RMAS for the arbitrator and for expenses. If a party has paid more than its share, the arbitrator may take that into account in his award

d. If any party has failed to pay fees or expenses in full, RMAS may suspend or terminate the arbitration. In that event, RMAS may notify the parties of its intent to do so to allow a party the opportunity to advance the required payment. If a party advances the payment owed by another party, the arbitration may go forward and the arbitrator may allocate the non-paying party’s share of such fees or expenses in the award.

Rule 23. Records. RMAS and the arbitrator will not maintain records filed in the arbitration once the arbitration is concluded. If the parties want any documents returned to them, they must advise RMAS in writing within 30 days of the issuance of the Award and be willing to pay an associated expenses.

Rule 24. Venue and Attorney’s Fees in Actions Involving RMAS or the Arbitrator. The exclusive venue for any litigation involving RMAS or the arbitrator shall be the District Court of Boulder County, Colorado, and if RMAS or the arbitrator prevail in such litigation, they shall be entitled to attorney’s fees and costs.