Arbitration Rules and Procedures

1. Applicability of Rules.

These Arbitration Rules and Procedures (the “Rules”)shall govern any binding arbitration of claims or disputes that is submitted tothe Hon. Brian A. Davis (Ret.) d/b/a/ BADavis ADR, LLC for resolution unless the parties and/or their counsel agreeotherwise as set forth in Rule 3(a), infra.

2. Definitions

(a) The term “Arbitrator” as used in these Rules means the Hon. Brian A. Davis (Ret.) d/b/a/ BADavis ADR, LLC. 

(b) The term “Arbitration” as used in these Rules means the arbitration proceeding to be conducted by the Arbitrator. 

(c) The term “Case Administrator” as used in these Rules means the person designated by the Arbitrator to assist him in administering the Arbitration.  The Case Administrator’s identity and contact information shall be supplied to the Parties upon initiation of the Arbitration.    

(d) The terms “Party” and “Parties” as used in theseRules include parties to the Arbitration and their counsel and/or representatives.

(e) The term “E-filing” as used in these Rules means the electronic transmission of documents to the Arbitrator and/or the Case Administrator for the purpose of filing via email and/or the Internet.  “Electronic service” means the electronic transmission of documents to a Party, attorney or representative under these Rules.

3. Modification of Rules and Agreement to Arbitrate.  

(a) The Parties may agree on procedures not specified herein in addition to or in lieu of these Rules, provided that the procedures are consistent with applicable law and Rules 6, 21, 23 and27 of these Rules, infra. The Parties shall promptly notify the Arbitrator of any such agreed-upon procedures and shall confirm them in writing. The Parties’ agreed-upon procedures shall be enforceable as if they were contained in these Rules.

(b) If the Parties’ arbitration agreement provides that the Arbitration will be conducted by a person or entity other than theArbitrator as identified herein and/or conducted in accordance with rules other these Rules, the Parties may agree to modify their agreement to provide that the Arbitration will be conducted by the Arbitrator and/or in accordance with these Rules.

4. Powers of the Arbitrator and Jurisdictional Challenges.

(a) Unless the Parties agree otherwise in writing, the Arbitrator shall have all of the powers set forth in these Rules, in the Parties’ arbitration agreement, and provided by law, including, without limitation, Massachusetts General Laws c.251.

(b) Once appointed, the Arbitrator shall resolve disputes about the interpretation and applicability of these Rules and conduct of the Arbitration.  The resolution of an issue by the Arbitrator shall be final.

(c) Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement pursuant to which Arbitration is sought and who is a proper Party to the Arbitration, shall be submitted to and decided by the Arbitrator.  The Arbitrator may determine any jurisdictional or arbitrability issues as a preliminary matter.  

5. Initiation of the Arbitration.  

(a) A Party to any dispute may seek to commence an arbitration under these Rules by submitting a written arbitration demand to the Case Administrator by mail or email.  Upon receipt of an arbitration demand, the Case Administrator shall promptly communicate with the Parties and notify them of the Arbitrator’s availability and his willingness to arbitrate the Parties’ dispute.

(b) Prior to the commencement of the Arbitration, the Parties shall agree in writing to have the Arbitrator arbitrate their dispute by executing and submitting an Agreement for Arbitration form.

6. Impartiality and Disqualification of the Arbitrator.

The Arbitrator shall have no personal or financial interest in the outcome of the Parties’ dispute.  Before agreeing to serve, the Arbitrator shall undertake a reasonable inquiry, based on the information supplied by the Parties, to determine whether there are any facts or circumstances that a reasonable person likely would regard as an actual or potential conflict of interest for the Arbitrator.  The Arbitrator thereafter shall promptly disclose to the Parties any known facts or circumstances that a reasonable individual likely would regard as an actual or potential conflict of interest for the Arbitrator.  In the event of such a disclosure, any Party shall have the right to disqualify the Arbitrator.  A Party’s right to disqualify the Arbitrator based on an actual or potential conflict of interest shall be deemed waived unless asserted within ten (10) days of the Arbitrator’s disclosure of the same.  

7. Notice of Claims, Counterclaims, and Defenses.  

(a) Each Party shall afford the other Parties reasonable and timely notice of its claims, affirmative defenses and counterclaims.  Any such notice shall include a short statement of the factual basis for each claim, affirmative defense or counterclaim.   No claim, remedy, counterclaim or affirmative defense will be considered by the Arbitrator in the absence of prior notice to the other Parties, unless the Arbitrator determines that no Party has been unfairly prejudiced by such lack of formal notice or allParties agree that such consideration is appropriate notwithstanding the lack of proper notice.

(b) The Claimant’s notice of claims shall be the arbitration demand referenced in Rule 5, supra.  It shall include a statement of the remedies sought.  The arbitration demand may attach and incorporate a copy of a complaint previously filed with a court.  In such circumstances, the Claimant also shall include with the complaint with a copy of any answer to that complaint filed by any Respondent.  

(c) Within fourteen (14) days of service of the arbitration demand, a Respondent may submit to the Arbitrator a written response to the arbitration demand and a statement of any counterclaims and affirmative defenses, including jurisdictional challenges, it may have. The Arbitrator may grant reasonable extensions of time to file a response or counterclaim.

(d) Within fourteen (14) calendar days of service of a counterclaim, a Claimant may submit to the Arbitrator and serve on other Parties a response to such counterclaim and any affirmative defenses, including jurisdictional challenges, it may have.

(e) Any claim or counterclaim to which no response is served shall be deemed to have been denied by the responding Party.

(f) Jurisdictional challenges under Rule 4(b), supra, shall be deemed waived unless asserted in the Party’s response to an Arbitration Demand or counterclaim or promptly thereafter, when circumstances first suggest a question of arbitrability.

(g) No Party may assert a new or different claim, counterclaim, or affirmative defense after filing its initial Arbitration Demand or response except with the Arbitrator’s approval.  A Party may request a hearing on a request for leave to amend its Arbitration Demand or response, and each Party shall have the right to respond within fourteen (14) days to any new or amended claim, counterclaim, or affirmative defense that the Arbitrator approves.

8. Representation in the Arbitration.  

Any Party may represent him or herself in the Arbitration, or may be represented by counsel or any other authorized representative.  Each Party shall notify the other Parties and the Case Administrator of the full name and address of his or her counsel or representative at least seven (7) days prior to the first date on which the representative is expected to appear. When an Arbitration is initiated by counsel or when an attorney replies for the responding Party, such notice shall be deemed to have been given.

9. Preliminary Conferences and Administrative Matters.  

(a) TheArbitrator may convene, or the Parties may request, one or more conferences in advance of the Arbitration to discuss any procedural matter relating to the Arbitration.

(b) If, at any time, a Party has failed to pay its share of Arbitration fees or expenses in a timely manner, the Arbitrator may suspend or terminate the Arbitration proceedings.  In such circumstances, theArbitrator shall inform the other Parties of the non-payment before he suspends or terminates the Arbitration so that the other Parties may advance the required payment.  If one Party advances a payment owed by a non-paying Party, the Arbitration shall proceed and theArbitrator may allocate the non-paying Party’s share of fees and costs in theAward as he deems appropriate.

(c) An administrative suspension shall toll any other time limits contained in these Rules or the Parties’ agreement.  

10. Time and Place of the Arbitration.

(a) The Arbitrator, in consultation with the Parties, shall determine the time and place of any and all Arbitration proceedings. In determining the location of the Arbitration hearing and any related proceedings, the Arbitrator shall take into account such factors as the subject matter of the dispute, the convenience of the Parties and the witnesses, and the relative resources of the Parties.

(b) The Case Administrator will notify each Party of the time and place of each Arbitration event by mail or email at least twenty (20) days in advance, unless the Parties, by mutual agreement, waive such notice or modify the terms thereof.  The notice ofArbitration hearing shall specify whether it will be conducted in person, virtually, or in hybrid form.

11. Discovery.  

It is the intention of these Rules to encourage voluntary discovery by and among the Parties.  All Parties are urged to engage in reasonable pre-hearing discovery in accordance with the Massachusetts Rules of Civil Procedure.  If the Parties cannot agree on discovery, the Arbitrator, upon application of any Party, may decide such matters and issue an order directing what discovery may be had.  Any such order shall be binding on all of the Parties.  The Arbitrator shall conduct a hearing on any discovery dispute that arises if a Party to the dispute requests that he do so.  

‍12. Stenographers and Interpreters.

‍(a) Any Party or Parties wishing to obtain a stenographic record of any portion of the Arbitration shall arrange for a stenographer and shall notify the other Parties of such arrangement in advance of the relevant proceeding.  No other means of recording the Arbitration proceedings shall be permitted absent agreement of the Parties or an order of the Arbitrator.  The Party or Parties who requested the stenographic record shall pay all associated costs, provided, however, that the Parties may agree that the cost of the stenographic record shall or shall not be allocated by the Arbitrator in the Award. If a stenographic transcript is agreed by the Parties to be, or is determined by the Arbitrator to be, the official record of the Arbitration, a copy must be made available to the Arbitrator and the other Parties for inspection as directed by the Arbitrator.

(b) Any Party or Parties wishing to obtain the services of an interpreter shall arrange for the interpreter and shall pay all associated costs.

‍13. Confidentiality and Privacy.

‍(a) The Arbitrator shall maintain the confidential nature of all Arbitration proceedings and the Award, except to the extent that disclosure is required in connection with a judicial proceeding to challenge or confirm an award, or unless otherwise required by law or judicial decision.

(b) Each Party and any other person having a direct interest in the outcome of the Arbitration shall be allowed to attend Arbitration proceedings.  The Arbitrator shall have the power to exclude any non-Party from any part of the Arbitration.  

(c) By agreement of the Parties or upon request by a Party, the Arbitrator shall have the power to issue an order to protect the confidentiality of proprietary information, trade secrets or other sensitive information that may be disclosed in the course of the Arbitration.

‍14. The Arbitration Hearing.

‍(a) The Arbitrator shall determine the manner in which the Arbitration hearing is conducted.  The Arbitrator ordinarily will conduct the hearing in the manner described in these Rules, provided, however, that the Arbitrator may vary any of the procedures set forth herein if he deems it necessary and reasonable to do so.

(b) The Arbitrator may order that the Arbitration hearing, or any portion thereof, be conducted in person, virtually, or in hybrid form, and may issue any further orders as he deems necessary or advisable to enforce this rule.

(c) The Parties may, by written agreement, provide for the waiver of an oral Arbitration hearing.  If the Parties are unable to agree on the procedure for such a hearing, the Arbitrator, upon request, shall establish a fair and equitable procedure.

(d) Unless the Arbitrator orders otherwise, the hearing shall be opened by the filing of the oath of the Arbitrator, where required; by the recording of the place, time, and date of the hearing and the presence of the Arbitrator, the Parties and counsel, if any; and by the receipt by the Arbitrator of the Arbitration Demand and response, if any.  The Arbitrator may, at the start of the hearing, ask for further statements clarifying the issues involved.  The claimant then shall present its claims, proofs, and witnesses, who shall submit to questions or other examination.  The respondent then shall present its defenses, proofs, and witnesses, who shall submit to questions or other examination.  The Arbitrator may limit testimony or otherwise exclude evidence that would be immaterial or unduly repetitive, but in all instances he shall afford the Parties a reasonably full and fair opportunity to present their relevant evidence and argument.

(e) Strict conformity to the rules of evidence is not required at the Arbitration hearing, except that the Arbitrator shall apply applicable law concerning privileges and work product.  The Arbitrator shall consider evidence that he finds relevant and material to the dispute, giving the evidence such weight he deems appropriate.  The Arbitrator may be guided in that determination by the rules and principles contained in the Massachusetts Guide to Evidence or any other applicable rules of evidence.

(f) The Parties shall not offer as evidence, and the Arbitrator shall not admit or consider, prior settlement proposals made by the Parties or statements or recommendations made by a mediator or other person in connection with efforts to resolve the dispute being arbitrated, except to the extent that applicable law permits the admission of such evidence.

(g) The Arbitrator may require witnesses to testify under oath administered by any duly qualified person and, if required by law or requested by a Party, shall do so.

(h) The Arbitrator shall receive and consider relevant deposition testimony recorded by transcript or videotape, provided that the other Parties had a fair opportunity to attend and cross-examine.  The Arbitrator may, in his discretion, consider witness affidavits or other recorded testimony even if the other Parties have not had the opportunity to cross-examine, but he will give that evidence only such weight as he deems appropriate.

(i) Relevant, material, and admissible exhibits, when offered by a Party, will be received in evidence by the Arbitrator.  The weight to be given to any exhibit shall be left to the sole discretion of the Arbitrator.

(j) Whenever the Arbitrator deems it necessary or helpful to make an inspection or investigation in connection with the Arbitration, he shall so advise the Parties.  Any Party who so desires may be present at such inspection or investigation.  In the event that one or more of the Parties is not present at the inspection or investigation, the Arbitrator shall make a verbal or written report of the inspection or investigation to the Parties and afford them a reasonable opportunity to respond.  

(k) The Arbitrator may proceed with the Arbitration hearing in the absence of a Party who has received notice of the hearing, but fails to attend.  The Arbitrator may not render an Award solely on the basis of the default or absence of the Party, but shall require any Party seeking relief to submit such evidence as the Arbitrator may require for the rendering of an Award.  If the Arbitrator reasonably believes that a Party will not attend the Arbitration hearing, the Arbitrator may conduct the hearing virtually and may receive evidence sufficient to render an Award by affidavit.

(l) The Arbitrator may, for good cause, adjourn the Arbitration hearing upon the request of a Party or upon the Arbitrator’s own initiative, and shall grant an adjournment when all of the Parties agree thereto.  The Arbitrator may assess reasonable costs against any Party or Parties as a condition of an adjournment.

‍15. Protection of Property.

‍The Arbitrator may issue such orders as he deems necessary to safeguard any property that is the subject matter of the Arbitration without prejudice to the rights of the Parties or to the final determination of the dispute.  Any such order shall be enforceable as an interim order or award of the Arbitrator.

‍16. Closure of the Arbitration Hearing.

‍The Arbitrator shall specifically inquire of all Parties whether they have any further proofs to offer or witnesses to be heard.  Upon receiving negative replies, or if satisfied that the record is complete, the Arbitrator shall declare the Arbitration hearing closed.  If post-hearing briefs are to be submitted or closing arguments are to be made, the hearing shall be deemed closed upon receipt by the Arbitrator of such briefs or at the conclusion of such closing arguments, whichever occurs later.

‍17. Reopening the Arbitration Hearing.

‍The Arbitrator may reopen the Arbitration hearing upon a showing of good cause by any Party or upon the Arbitrator’s own initiative at any time before the award is made.

‍18. Sanctions.

‍The Arbitrator may impose sanctions on a Party based on the Party’s failure to comply with its obligations under any of these Rules or with an order of the Arbitrator.  Permissible sanctions include, but are not limited to, assessment of Arbitration fees and Arbitrator compensation and expenses; assessment of any other costs occasioned by the conduct at issue, including reasonable attorney’s fees; exclusion of certain evidence; drawing of adverse inferences; or, in extreme cases, determining an issue or issues submitted to Arbitration adversely to the Party that has failed to comply.

‍19. Waiver of Rules and Objections.

‍(a) If a Party becomes aware of a violation of or failure to comply with these Rules and fails to object promptly in writing, any objection thereto by such Party shall be deemed waived, unless the Arbitrator determines that waiver will cause substantial injustice or hardship.

(b) If a Party becomes aware of information that could form the basis of a challenge for cause to the continued service of the Arbitrator, such challenge shall be made promptly, in writing, to the Arbitrator.  The failure to do so shall constitute a waiver of any objection by such Party to continued service by the Arbitrator.

‍20. Extension of Deadlines.

‍The Arbitrator may, for good cause shown or on his own initiative, extend any deadlines established in these Rules in order to facilitate the Arbitration, provided, however, that the time for rendering the Arbitration award only may be altered with the consent of the Parties.

‍21. Arbitration Fees and Expenses.‍

(a) Each Party shall pay its pro rata share of the Arbitration fees and expenses as set forth in the Fee Schedule in effect at the time of the commencement of the Arbitration, unless the Parties agree on a different allocation of fees and expenses.  The Arbitrator’s agreement to render services is entered into jointly with each Party and with the attorney or other representative of that Party in the Arbitration.  The non-payment of fees or expenses when due may result in an administrative suspension of the Arbitration in accordance with Rule 9(b), supra.

(b) The Parties are jointly and severally liable for the payment of all Arbitration fees and expenses.  In the event that one Party has paid more than its share of such fees, compensation and expenses, the Arbitrator may award against any other Party any such fees, compensation and expenses that such Party owes with respect to the Arbitration.

(c) Entities or individuals who are jointly represented and whose interests are not adverse with respect to the issues in dispute shall be treated as a single Party for purposes of the assessment of Arbitration fees and expenses.  In the event of a disagreement, the Arbitrator shall determine whether the interests between entities or individuals are adverse for the purpose of assessing fees and expenses.

22. Service of Notice and Other Papers.

(a) With the exception of the Arbitration Demand, which shall be served by U.S. certified mail-return receipt requested, each Party shall be deemed to have consented that any papers, notices, or process necessary or proper for the initiation or continuation of the Arbitration, for any court action in connection therewith, or for the entry of judgment on any award made by the Arbitrator, may be served upon such Party by first class mail addressed to such Party or its attorney at the last known address or by in-hand service.  

(b) Notwithstanding the foregoing, the Parties may agree or the Arbitrator may require the filing and service of documents in the Arbitration through the use of E-filing.  If the Parties agree or the Arbitrator requires the use of E-filing, each Party shall maintain and regularly monitor a valid, usable and live email address for the receipt of all Arbitration-related documents and notifications.  Any document that is filed and served by means of E-filing shall be considered as having been filed and served at the time the electronic transmission is complete.  A document e-filed by 11:59 p.m. of the sending Party’s time zone shall be deemed to have been filed that day.  

23. Ex Parte Communications with the Arbitrator.

The Parties shall not engage in any ex parte communications with the Arbitrator.  All communications with the Arbitrator shall be simultaneously served upon or otherwise made known to the other Parties.  

24. Timing of the Arbitration Award.

Unless otherwise agreed by the Parties or specified by law, the Arbitrator shall render his award no later than twenty-one (21) days from the date of closing the Arbitration hearing or, if oral hearings have been waived, from the date on which final statements and proofs were transmitted to the Arbitrator.  The Arbitrator shall deliver the award by sending copies to the Parties by first-class mail addressed to each Party or its attorney at the last known address, or by email directed to the last known email address of each Party or its attorney.  

25. The Form and Content of the Arbitration Award.

The award shall be in writing and shall be signed by the Arbitrator.  It shall be executed in the manner required by law, if any.  In the award, the Arbitrator may grant any remedy or relief that he deems just and equitable and within the scope of the agreement of the Parties, including, but not limited to, specific performance of a contract.  

26. Reconsideration, Modification or Correction of the Arbitration Award.

Any Party may seek reconsideration, modification or correction of an Arbitration award, provided, however, that such request is made in writing and served on the Arbitrator and all other Parties within twenty (20) days of the issuance date of the award.  The Arbitrator, in his discretion, may hold a hearing on a request for reconsideration, modification or correction if he deems it appropriate or helpful to do so, or he act on the request without a hearing.  The decision of the Arbitrator on any such request shall be final and binding on all the Parties.

27. Judicial Proceedings Concerning the Arbitration and Exclusion of Liability.

(a) The Arbitrator shall, upon the written request of a Party, furnish to such Party, at that Party’s expense, certified copies of any papers in the Arbitrator’s possession that may be required in a judicial proceeding concerning the Arbitration, including any proceeding to confirm the Arbitration award.  

(b) The Parties agree that the Arbitrator shall not be made a party to, and shall not be deemed a necessary party to any judicial proceeding concerning the Arbitration.  

(c) Neither the Arbitrator, nor any of the Arbitrator’s work product or confidential notes shall be subject to subpoena, appearance, discovery or disclosure in any judicial proceeding concerning the Arbitration.

(d) Neither the Arbitrator, nor any person assisting the Arbitrator, including without limitation the Case Administrator, shall be liable to any Party under any theory for any act or omission in connection with the Arbitration.