Uniform Rules for Binding Arbitration of Business Consumer Alliance

Introduction

About Business Consumer Alliance

Business Consumer Alliance (BCA), a private, nonprofit organization serving business and consumers since 1928, is dedicated to promoting and encouraging business self regulation to the end that the marketplace will be an arena in which consumers can identify trustworthy and ethical businesses and avoid unscrupulous businesses.  BCA is funded by its business members, who support its mission and purpose and who agree to abide by its high standards of ethical business practices.  One means BCA employs to accomplish its goal is to offer binding arbitration of business-consumer disputes.

The rules of arbitration are set forth below, preceded by a brief explanation of arbitration.

What is Arbitration?

Arbitration is a means of resolving disputes that cannot be resolved through BCA’s complaint resolution or mediation programs.  Arbitration means simply that the parties to a dispute each present their side of the dispute to a third party, who decides what the outcome should be.  The hearing at which this all takes place is somewhat like a court proceeding, but is much more informal.  You are not required to use an attorney, but you may consult one beforehand or ask one to attend the hearing with you, if you wish.  Instead of a judge, a neutral third party, or “arbitrator,” presides, and his/her decision is final and binding, as is that of a judge in a court of law.  In the case of arbitration, though, the arbitrator’s decision is based not necessarily upon statutes and legal precedents, but upon what the arbitrator feels is fair, taking all evidence into consideration.

Also, unlike a court proceeding, an arbitration proceeding will, in most cases, be concluded within 90 days.

Many businesses enter into agreements with their customers to arbitrate disputes that may arise from their business transactions.  Other businesses ask BCA to arbitrate on a case-by-case basis.  That is, although they and their customer have not previously agreed to arbitrate, if all parties are willing at the time the dispute arises, they voluntarily submit the dispute to BCA for arbitration.

You should be aware that each party gives up his/her right to sue the other party in court on any claim that has been resolved through arbitration.  However, if the party against whom the arbitration award is made fails to perform according to the arbitrator’s decision, you may obtain a court judgment to enforce the award.

Uniform Rules for Binding Arbitration

Any dispute arbitrated by Business Consumer Alliance will be arbitrated under the Business Consumer Alliance Uniform Rules for Binding Arbitration in effect at the time the arbitration is initiated.  These Rules become part of the arbitration agreement whether or not the arbitration demand or agreement so states.

Any deviation from these Rules that may significantly affect the impartiality, fairness or outcome of the arbitration process should be brought to BCA’s attention immediately.   BCA will assess the effect of the deviation and take any action it deems necessary to rectify it.

These Rules are written for typical arbitrations, which are between two parties.  However, in the very unusual case that involves more than two parties, terms such as “the other party,” “both parties,” and other similar terms are to be interpreted as applying to all parties according to the context in which they are used.

Similarly, “arbitrator” also means the plural where appropriate.

When a number of days is stated, it refers to calendar days unless otherwise stated.  Any time period stated throughout these Rules may be changed if both parties agree.

BCA’s Rights in the Arbitration Process

Disputes Eligible for BCA Arbitration

BCA arbitrates disputes between one business and another or between a business and consumer that relate to consumer products and services.  The decision to arbitrate a dispute or any part of it rests solely with BCA.

If you submit your dispute to BCA arbitration, you must agree not to subpoena the arbitrator in any subsequent legal proceeding.  You must further agree that neither BCA nor the arbitrator shall be held liable for any act or omission in connection with your arbitration.

Only disputes involving transactions of $500 or more are eligible for arbitration.

Interpretation of Rules; Discontinuance of Arbitration

BCA reserves the right to make the final decision on procedural questions relating to its arbitration, on the scope of the arbitration agreements, on a consumer’s eligibility for arbitration, and on any other question concerning the application and interpretation of these Rules.

BCA at all times reserves the right to discontinue arbitration of any case due to a conflict with any applicable state or federal law or regulation, the conduct of a party, or violation of any BCA Rule.

Costs of Arbitration

BCA arbitrates normal disputes at no charge if one of the parties to the dispute is a BCA member in good standing.   In cases of disputes considered by BCA, in its sole discretion, to be atypical, the parties will be required to pay a fee, based upon BCA’s fee schedule in effect at the time of the arbitration request.  In these cases, the parties will also be required to pay arbitrator fees, which are determined by the arbitrator.  All fees are payable in advance.

Preliminary Steps

Initiating Arbitration

If you and the other party agreed in advance to arbitrate, BCA will prepare a Demand for Arbitration for the party who seeks arbitration (the “Initiator”) and send it to the other party (the “Respondent”).  The Respondent will have the opportunity to describe the dispute as s/he sees it, to state how s/he would like it to be resolved, and to make any settlement offer.  (Any settlement offer made and accepted prior to the arbitration hearing will end the arbitration without a hearing.)

If you did not agree in advance to arbitrate, both parties must first agree to submit the dispute to BCA arbitration in order for us to arbitrate.

The Agreement to Arbitrate

Whether the parties agree to arbitrate in advance or at the time one party seeks arbitration, BCA will prepare an Agreement to Arbitrate that will outline the issues to be decided and the types of awards the arbitrator may consider in the case.  If you disagree with BCA’s general description of the case and/or the decision you seek, you must contact BCA immediately.  Both parties must sign and return this Agreement to BCA within seven days of the date the final version was mailed.

If the parties agreed in advance to arbitrate, the failure of any party to sign and return the Agreement to Arbitrate to BCA within the seven days allowed will be considered an acceptance of that agreement, and its terms will be binding upon the parties.

If the parties did not agree in advance to arbitrate and one party does not return the signed agreement within the seven days allowed, BCA may not arbitrate the dispute.

The Arbitrator

Choosing the Arbitrator

BCA maintains a pool of trained arbitrators.  Although the arbitrators will not necessarily have expertise in the area of each dispute, they will carefully consider all evidence before them before making their decision or award.

You will have input into the choice of arbitrator, and every effort will be made to select the parties' preferred arbitrator.  BCA will provide the parties with the names of and brief biographical information about two or more arbitrators chosen from the pool.  Each party should number its choices in order of priority.   Nevertheless, if either party has any present or prior relationship, including but not limited to business or professional, financial, family or social, with any arbitrator whose name is submitted, that party must reject that arbitrator.

If the selection is made by mail, you have seven days after the list of arbitrators is mailed to you to mail it back to BCA.  If you do not mail it to BCA within these seven days, BCA will assume all names are satisfactory to you.

Should a selected arbitrator be unavailable, unable, or ineligible to serve for any reason, BCA will provide the name of and brief biographical information about another arbitrator, using these same procedures.  Again, you will have seven days from the date of mailing to accept or reject this arbitrator.

BCA may, or must when required by law or contractual obligation, allow appointment of a panel of three or more arbitrators for a case.  Any action taken or decision made by the panel shall be by majority vote.

BCA may use variations of this selection process, provided that such variations do not allow any conflict of interest and that they insure the parties a neutral arbitrator.

Arbitrators’ Duties of Impartiality and Disclosure

Any BCA arbitrator who agrees to hear your case will sign an oath affirming his intent to serve impartially.

Communications with the Arbitrator

No party nor any representative of a party may communicate with the arbitrator about the dispute outside the hearing except through BCA unless all parties are present or have given their written permission to such communication.

The Hearing

Scheduling the Arbitration Hearing

BCA will schedule an arbitration hearing after consulting with the parties and the arbitrator, taking into consideration the convenience of the parties and witnesses.  You will be notified of the date, time, and place at least 10 days in advance.  If you are not satisfied with the choice of hearing date, time or place, you should contact BCA immediately and we will try to reschedule it.  However, BCA retains the right to make the final scheduling decision.

Most likely this will be the only hearing you will need to attend; however, some cases may require one or more additional hearings.

Attendance at the Hearing

An arbitration hearing is usually attended by the parties by phone via teleconferencing services, but if you so request, BCA may arrange for you to present your case by in person or in writing.  In the case of a telephone hearing, you must submit to BCA at least seven days before the hearing any written documents you will use as evidence.  BCA will then provide these to the other party in advance of the hearing.

Besides the parties, witnesses, any interpreters, technical experts, and the arbitrator, BCA may allow other of its arbitrators or government representatives to attend a hearing.  BCA will make a final decision as to attendance of any other person(s) after determining that neither the arbitrator nor any other party objects and that reasonable accommodations exist for such attendance.  Any and all persons in attendance must submit to BCA’s conduct requirements, which include showing courtesy and respect to all present and refraining from loud or offensive language.

Any outside person in attendance may take notes but may not, unless approved by BCA, use equipment including, but not limited to, lights, cameras or other video or audio recording equipment.

Failure to Attend the Hearing

Should you fail to attend a hearing except for good cause, the hearing may proceed without you.  The arbitrator will most likely first try to reschedule it or ask you to submit your case in writing, but s/he has the discretion to decide the case without your attendance or presentation.

How to Prepare for the Hearing

Come to the hearing prepared to present your case (generally in chronological order of the events relevant to it) and whatever evidence supports your facts.  You may make notes as to the order in which you want to present your points and then ask your questions of the other party.

Evidence

The evidence you use to support your case may consist of testimony from anyone who was present at the time of the transaction or can in any way testify to the truth of your statements; or writings, such as the contract relating to the matter in dispute and any other documents, bills, receipts, correspondence, etc., that support your claim.  (Bring original written materials, if you can, plus a copy each for the arbitrator and the other party.)

It’s important to be aware that evidence may not be introduced after the hearing unless it was not possible to introduce it at the time of the hearing.  No evidence may be brought in after the arbitrator has decided the case.

Subpoenas

You may ask BCA to request that the arbitrator subpoena any witness or evidence relevant to your case.  You will need to specify, in your request, the relevance of the testimony or other evidence and why you believe a subpoena is necessary.  If the arbitrator agrees to your request, a subpoena will be issued and served.  The party requesting the subpoena is responsible for any costs involved in its issuance, service, or enforcement.

Technical Experts

If you wish to use the findings of a technical expert to support your case, you may employ an expert, at your own expense, to inspect the product or service in dispute and present his/her findings either in writing or in person.  In any case, you will have an opportunity to evaluate and comment on the expert’s qualifications and findings.

Inspections

Either party or the arbitrator may request an inspection of the product or service that is the subject of your dispute.  The inspection may be conducted as part of the hearing or at a later date.  Unless waived by all parties, each party must receive at least eight days’ notice before the inspection.

Conduct of the Hearing

The hearing will afford the parties the opportunity to present their side of the dispute, supported by testimony of witnesses and any technical expert they may wish to employ and documentary evidence they wish to present, and to question the other party.  Either party or both may also be asked questions by the arbitrator.  Both will also have the opportunity to summarize their case and make a closing statement.  All parties and witnesses will be under oath at the hearing.

If a party requires an interpreter and is unable to provide one, BCA will seek a volunteer.  BCA is not required to provide an interpreter for the hearing.

Although the hearing is informal and doesn’t require any legal expertise or arguing skills on your part, you are expected to present only what is factual and relevant to your case and to do so courteously.  If you prefer to have an attorney or another person represent you, you may do so at your own expense.  If your representative is an attorney, you must notify BCA of the attorney’s name and address at least eight days before the hearing, after which BCA will inform the other parties of your legal representation.  If BCA does not have this information within the time allowed, BCA may reschedule the hearing.

You may present to the arbitrator the written statement of a witness who cannot attend the hearing, but you must also give a copy to the other party to read and use to respond. The other party may object to the use of written statements or may request time, before the arbitrator makes a decision, to respond to any such statement or other written evidence first presented at the hearing, but the arbitrator holds the authority to accept or reject that request.  You, of course, may also ask the arbitrator for additional time to respond to similar evidence not presented to you prior to the hearing.  All written statements must be made under penalty of perjury.

If the arbitrator needs additional information or evidence, written or otherwise, to make a decision, s/he may order such information or evidence to be submitted either at another hearing to be scheduled or in some other appropriate manner.  Written evidence shall be sent to BCA within the time specified by the arbitrator, after which BCA will send a copy to the other party for response and, after the response is received, forward both the evidence and response to the arbitrator.

If, before the arbitrator’s decision has been rendered, any party comes into possession of new information that was impossible to present at the original hearing, that party may send it to BCA and request that it be considered.  BCA will first send the information to the other parties for response and then forward it, with any response(s), to the arbitrator.

The Award (Decision)

The arbitrator will close the hearing once s/he is satisfied that all parties have had sufficient opportunity to present and respond to all evidence, after which s/he will make the award.    After the arbitrator has made a decision in your case, no further arguments or evidence may be presented, even if the evidence is newly discovered or not available at the time of the hearing.

If the parties should reach a settlement during the hearing, the arbitrator shall include the settlement terms in a final or interim consent decision.  If you and the other party reach a settlement after the hearing but before the arbitrator's final decision, you should notify BCA immediately.

Arbitration awards, or decisions, may include refunds of up to the full cost of the product and/or service that is the subject of the arbitration, plus any sales taxes and other direct incidental costs incurred at the time of the sale.  Or they may include repairs, or reimbursement for the cost of repairs, to a product; and/or the amount of any actual out-of-pocket loss or property damage caused by provision of the service.  Other awards may be made, as applicable, but those made pursuant to a BCA arbitration decision are limited to those available in a court of law.

In most cases, the arbitrator will decide your case within five days of closing the hearing.  All parties will receive a copy of the written decision, including reasons for the decision if the arbitrator chooses to explain them.  The parties will be notified of the decision by mail only.

Types of Decisions

The arbitrator’s decision may be either final or interim.  A final decision will be based upon monetary compensation and may consist of an amount of from nothing to the entire amount you are asking, or something in between.  Upon issuing a final decision, the arbitrator’s authority ceases unless a request to clarify or correct the decision is made and granted.

An interim decision may order some action to be performed, and the arbitrator maintains continuing authority over the case.  An interim decision will also state a time within which the prevailing party must notify BCA if the action ordered in the interim decision was not complied with or was not carried out satisfactorily.

If a reconvening is requested in accordance with the terms of the decision, BCA will schedule it.  The parties may present relevant evidence at that time, and the arbitrator may request additional evidence from the parties or from an impartial technical expert.

The arbitrator will send his/her decision based upon this hearing to BCA within five days after the hearing is closed.

Clarifying the Decision

You may ask the arbitrator to clarify a decision you do not understand or in a case where you and the other party disagree about the specific action required by the decision.  You may not request anything other than clarification, and your request must be sent, in writing, to BCA within 10 days after the date of the arbitrator’s decision.

Upon receipt of your valid request to clarify, BCA will request the views of other parties to the arbitration and send the request and response(s) to the arbitrator.  The arbitrator may either clarify the decision or reject the request for clarification and let the decision stand as written.   Until the clarification issue is resolved by the arbitrator or by BCA, the time for performance of a decision shall be suspended.

You may not ask the arbitrator to clarify the reasons for decision.

Correcting the Decision or Reasons for Decision

You may ask the arbitrator to correct a decision or the reasons for it that you believe to be mistaken.  This might be a case where you believe the decision or reasons therefor to contain a factual mistake or a mathematical mistake or miscalculation, or that the decision exceeds the arbitrator's authority.

Again, you may not request anything other than correction.  That is, there must be a genuine error that, unless corrected, will adversely affect the party requesting the correction.  And again, your request must be sent, in writing, to BCA within 10 days after the date of the arbitrator’s decision.

If your request for correction is appropriate, BCA will send it to the other parties to solicit their views, and send the request and any response to the arbitrator.  The arbitrator may either correct the decision or reasons or reject the request for correction and let the decision or reasons stand as written.   Until the correction issue is resolved by the arbitrator or by BCA, the time for performance of a decision shall be suspended.

Impossibility of Performance or of Timely Performance

If you find the action required by an interim decision to be impossible to perform or impossible to perform within the established time limit, you should immediately inform BCA in writing.  As with a request for correction BCA will solicit the views of the other parties, and send your notice or statement and any response to the arbitrator.

The arbitrator may request additional evidence, another hearing, or anything else necessary to confirm or deny your claim of impossibility of performance or of timely performance.  If the arbitrator confirms such impossibility, the original decision may be changed to any remedy falling within the scope of the Agreement to Arbitrate.

Until the performance impossibility issue is resolved by the arbitrator or by BCA, the time for performance of a decision shall be suspended.

After the Decision is Issued

Once a decision has been issued, it is subject to modification only as provided in these Rules or to any limited right of review that may be provided by state or federal law.  The parties are legally bound to abide by it and to comply with its terms.

BCA Policies Upon Completion of Arbitration

Record of Hearing

BCA will maintain basic file information on your arbitration for one year, or longer if required by law.  This information may include witnesses' names, documents presented as evidence at the hearing, and, in some cases, an audio recording of the hearing.  You may request copies of these materials, including the audio recording, and official arbitration forms relating to your case.  BCA may charge a reasonable copying fee.

Confidentiality of Records

BCA records of each arbitration are confidential and will not be released to anyone other than a party to the arbitration unless all parties agree to the release or unless required by law or pertinent to judicial or governmental administrative proceedings.

Rev. 11/19