Methods of Alternative Dispute Resolution In the State of Maryland
By: William Thomas Meadows, Law Student – Widener University School of Law (ADR Seminar-2001)Prepared:November 26, 2001
INTRODUCTION
A venue for civil and peaceful dispute resolution has historically been provided by the American court system. The courts punish serious crimes and decide precedent-setting cases that establish legal standards, which govern future behavior. The courts handle disputes in which there are significant power imbalances, such as domestic violence cases, try cases that parties want aired publicly, and hear a wide variety of cases after settlement efforts have failed to resolve all of the issues. The burden on our court system, however, has increased dramatically over the past years. In 1998 over two million cases were filed in Maryland’s combined trial courts alone. These case crowd court dockets despite the likelihood that many could be better resolved though mediation or some other alternative to litigation. To meet the growing need for swift and fair judicial proceedings many court systems have turn different methods of Alternative Dispute Resolution (“ADR”) in an attempt to help relieve some of the over crowding of the court’s dockets. ADR recognizes conflicts as an opportunity to bring people together, clarify issues, identify common ground, discuss options that meet the participants’ needs, rebuild relationships, and reach new understandings and, if possible, agreements that will prevent future disputes. In appropriate situations, ADR can help people find creative ways to resolve their disputes and manage conflict effectively. There are a variety of dispute methods that fall under the umbrella term “ADR”, although the State of Maryland has focused primarily on mediation, arbitration, settlement conferences, and consensus building. Other ADR processes include conciliation, ombuds programs, neutral case evaluation, and a host of other processes designed to address a variety of conflicts. The different forms of ADR share some basic characteristics that differentiate them from the traditional path of trial by judge or jury. ADR processes generally give the participants a more active role in resolving their own conflicts, and they tend to be more private, faster and less expensive than resolving disputes through litigation. Mediation, settlement conferences and many other non-adversarial ADR processes are geared toward helping participants reach their own voluntary decisions, while court involvement continues as an option if all of the issues are not resolved. For many years, the use of ADR proceedings has been slowly growing slowly in some states and more rapidly in others. ADR processes are currently being used for a multitude of purposes. These include resolving disputes between neighbors, improving communication skills within families, settling business disputes out of court, developing government regulations, addressing employment disputes, allowing offenders to take responsibility for minor crimes, and resolving conflicts that arise among students in schools. In February of 1998, the Honorable Robert M. Bell, Chief Judge of the Maryland Court of Appeals, created the Maryland ADR Commission to help expand dispute resolution options both inside and outside the court system, and ultimately improve the way in which society manages conflict. Chief Judge Bell charged the Commission with reviewing the state of ADR in Maryland and around the country, as well as developing and implementing a practical action plan to advance the appropriate use of ADR in the courts as well as in schools, neighborhoods, businesses, state and local government agencies, an in the criminal and juvenile justice systems. The ADR Commission has six committees that examined definitions and screening, courts administration, professional responsibilities, community issues, business applications and education, as each relates to the use of ADR. In a further attempt to expand their efforts the ADR Commission also formed four multi-disciplinary Regional Advisory Boards covering Western Maryland, Central Maryland, Southern Maryland, and the Eastern Shore. These boards provide diverse perspectives on regional needs and have helped further the goals of the Commission. The State of Maryland is unique in its approach of using widespread public participation, joint fact-finding, statewide consensus building and other dispute resolution techniques in the Commission’s process. Maryland is the first state to purposefully use ADR to advance ADR with a high-level, statewide, multi-disciplinary group. The Commission is also unique because its scope goes well beyond the boundaries of the judicial system in an effort to help prevent disputes from reaching the courts by stimulating the use of ADR in the business community, in state and local government, in neighborhoods, in families, in the criminal justice arena, in schools, and in the realm of educating the general public. Finally, the Commission is charged not only with playing an advisory role but also with taking action, setting it apart from most other Commission. For additional information on the Commission see their website. www.courts.state.md.us/draftplan.htmlDIFFERENT TYPES OF ADR USED IN MARYLAND
MEDIATION
Mediation is a process in which a trained neutral person, a “mediator”, helps people in a dispute to communicate with one another, understand each other, and if possible, reach agreements that satisfy the participants’ needs. In mediation a mediator does not provide legal advice or recommend the terms of any agreements. Instead, the mediator helps people reach their own agreements, rebuild their relationships, and if possible, find lasting solutions to their disputes. Mediation is a process that lets people speak for themselves and make their own decisions.ARBITRATION
Arbitration is a process in which people in a dispute present their views, often in written form, to a knowledgeable neutral person who evaluates their dispute and expresses an opinion about the most likely outcome in court. The neutral person usually has substantial knowledge or experience with issues involved in the dispute. This person’s opinion about how the court would probably decide the dispute helps people come up with appropriate out-of-court settlements.NEUTRAL CASE EVALUATION
A neutral case evaluation is a process in which people in a dispute present their views, often in written form, to a knowledgeable neutral person who evaluates their dispute and expresses an opinion about the most likely outcome in court. The neutral person usually has substantial knowledge or experience with issues involved in the dispute. This person’s opinion about how the court would probably come up with appropriate out-of-court settlements.SETTLEMENT CONFERENCE
A settlement conference is a process in which people in a dispute in court present their views to a knowledgeable neutral person who evaluates the case and suggests ways to settle the dispute without a trial. The settlement conference facilitator is usually a judge or experienced lawyer. The facilitator usually can give informed opinions about how the court might decide the case, discuss how similar cases have been settled, provide advice and suggest agreements.CONSENSUS BUILDING
Consensus building is a process in which a neutral person brings “stakeholder” groups and individuals together and facilitates their efforts to solve a common problem or address a complex issue in a way that best meets the participants’ needs. Consensus building resembles mediation because the process is about people making their own decisions, opening lines of communication, and developing agreements that everyone can support. Consensus building is different because it usually involves a larger group of people and is generally used to prevent or resolve disputes about public policy or other complex issues involving several parties. For additional information or a more comprehensive explanation of the different types of ADR proceedings go to www.courts.state.md.us/adr/html or www.adr.orgMARYLAND RULES AND STATUTES REGULATING THE ADR PROCESS
TITLE 17 – ALTERNATIVE DISPUTE RESOLUTION
CHAPTER 100 – PROCEEDING IN CIRCUIT COURT
As a result of Chief Judge Bell’s creation of the Maryland ADR Commission the Maryland General Assembly enacted Title 17, Chapter 100 and amended Title 9, Chapter 200 Rule 9-205. These rules apply to ADR in civil actions in the circuit court and became effective on January 1, 1999. The following is a general interpretation of the rules in Title 17 and of Rule 9-205. www.courts.state.md.us/adrrules.htmlRule 17-101. APPLICABILITY
The rules in chapter 100 only apply to civil actions. These rules do not affect actions or orders that enforce contractual agreements to submit disputes to alternative dispute resolution. The rules concerning the qualification and selection of persons designated to conduct court-ordered alternative dispute resolution proceedings only apply to court designated persons when there is not an established ADR agreement between them.
Rule 17-102. DEFINITIONS
Alternative dispute resolution means the process of resolving matters in pending litigation through a settlement conference, neutral case evaluation, neutral fact-finding, arbitration, mediation, other non-judicial dispute resolution process, or combination of those processes. Arbitration means a process in which the parties appear before one or more arbitrators and present evidence and argument supporting their respective positions, an the arbitrators render a decision in the form of an award that, unless the parties otherwise agree in writing, in not binding. Fee-for-service means that a party will be charged a fee by the person or persons conducting the alternative dispute resolution proceeding. Mediation means a process in which the parties appear before an impartial mediator who, through the application of standard mediation techniques generally accepted within the professional mediation community without providing the legal advice, assists the parties in reaching their own voluntary agreement for the resolution of all or part of their dispute. A mediator may identify issues, explore settlement alternatives, and discuss candidly with the parties or their attorneys the basis and practicality of their respective positions, but, unless the parties agree otherwise, the mediator does not engage in arbitration, neutral case evaluation, or neutral fact-finding and odes not recommend the terms of the agreement. Neutral case evaluation means the process in which the parties, their attorneys, or both appear before an impartial person and present in summary fashion, the evidence and arguments supporting their respective positions, and the impartial person renders an evaluation of their positions and an opinion as to the likely outcome if the action is tried. Neutral fact-finding means a process in which the parties, their attorneys, or both appear before an impartial person and present evidence and arguments supporting their respective positions as to particular disputed factual issues, and the impartial person makes findings of fact as to those issues. Unless the parties otherwise agree in writing, those findings are not binding. A settlement conference is a conference at which the parties, their attorneys, or both appear before an impartial person to discuss the issues and positions of the parties in the action in an attempt to resolve the dispute or issues in the dispute by agreement or by means other than trial. A settlement conference may include neutral case evaluation and neutral fact-finding, and the impartial person may recommend the terms of an agreement.Rule 17-103. GENERAL PROCEDURE AND REQUIREMENTS
In general a court may not require a party or the party’s attorney to participate in an alternative dispute resolution proceeding conducted by a person designated by the court unless that person possesses the minimum qualifications by the Rules or unless the parties agree to parties agree to participate in the process conducted by that person. If the court enters an order or determines to enter an order referring a matter to an alternative dispute resolution process, the court shall give the parties a reasonable opportunity to object to the referral, to offer an alternative proposal, and to agree on a person to conduct the proceeding. The court may provide that opportunity before the order is entered or upon request of a party filed within 30 days after the order is entered. The court shall give fair consideration to an objection to a referral and to any alternative proposed by a party. The court may not require an objecting party or the attorney of an objecting part to participate in an alternative dispute resolution proceeding other than a non-fee-for-service settlement conference. In an order referring an action to an alternative dispute resolution proceeding, the court may tentatively designate any person qualified under these rules to conduct the proceeding. The order shall set a reasonable time within which the parties may inform the court that they have agreed on another person to conduct the proceeding, and that person is willing and able to conduct he proceeding. If, within the time allowed by the court, the parties inform the court of their agreement on another person willing and able to conduct the proceeding, the court shall designate that person. Otherwise, the referral shall be to the person designated in the order. In making a designation when there is no agreement by the parties, the court is not required to choose at random or in any particular order from among the qualified persons. Although the court should endeavor to use the services of as many qualified person as possible, the court may consider whether, in light of the issues and circumstances presented by the action or the parties, special training, background, experience, expertise, or temperament may be helpful and may designate a person possessing those special qualifications.Rule 17-104. QUALIFICATION AND SELECTION OF MEDIATORS
To be designated by the court as a mediator, other than by agreement of the parties, a person must be at least 21 years old; unless waived by the court for good cause in connection with a particular action, have at least a bachelor’s degree from an accredited college or university; have completed at least 40 hours of mediation training in a program meeting the requirements of Rule 17-106; agree to abide by a code of ethics approved by the Court of Appeals (CITE TO THE CODE OF ETHICS); agree to submit to periodic monitoring of court-ordered mediations by a qualified mediator designated by the county administrative judge; and agree to comply with reasonable procedures and requirements prescribed in the court’s case management plan filed under Rule 16-203 b. relating to diligence, quality assurance, and willingness to accept a reasonable number of referrals on a reduced-fee or pro bono basis upon request of the court. To be designated by the court as a mediator with respect to issues concerning child custody or visitation, the person must have the qualifications stated above; have observed at least two custody or visitation mediations conducted by a person approved by the county administrative judge, in addition to any observations during the training program.Rule 17-105. QUALIFICATIONS AND SELECTION OF PERSONS OTHER THAN MEDIATORS
To be designated by the court to conduct an alternative dispute resolution proceeding other than mediation, a person unless the parties agree otherwise must agree to abide by a code of ethics approved by the Court of Appeals; agree to submit to periodic monitoring of court-ordered alternative dispute resolution proceedings by a qualified person designated by the county administrative judge; agree top comply with reasonable procedures and requirements prescribed in the court’s case management plan, relating to diligence, quality assurance, and willingness to accept a reasonable number of referrals on a reduced-fee or pro bono basis upon request by the court. The person must be a member in good standing of the Maryland bar and have at least five years experience in the active practice of law as a judge, a practitioner, a full-time teacher of law at a law school accredited by the American Bar Association, or a Federal or Maryland administrative law judge, or have equivalent or specialized knowledge and experience in dealing with the issues in dispute; and have either completed a training program specified by the circuit administrative judge or conducted at least two alternative dispute resolution proceedings with respect to actions pending in a circuit court. A judge or master of the court may conduct a non-fee-for-service settlement conference also.Rule 17-106. MEDIATION TRAINING PROGRAM
To qualify under Rule 17-104 a mediation training program must include a conflict resolution and mediation theory, including causes of conflict, interest-based versus positional bargaining, and models of conflict resolution. In addition the training program must contain mediation skills and techniques, including information gathering skills, conflict management skills, negotiation techniques, caucusing, cultural and gender issues, and power balancing. There must be a section concerning mediator conduct, including conflicts of interest, confidentiality, neutrality, ethics, and standards of practice. There must also be a section in the program dealing with simulation and role-playing that is monitored and critiqued by experienced mediator trainers. A child access mediation training program must include courses concerning Maryland law relating to separation, divorce, annulment, child custody and visitation, and child and spousal support. The emotional aspects of separation and divorce on adults and children, as well as learning to screen for and address domestic violence must be included in the training program. Finally the program must include courses that introduce information on family systems and child development theories as well as the inter-relationship between custody and child support.Rule 17-107. PROCEDURE FOR APPROVAL
A person that wished to conduct alternative dispute resolution proceedings with the court must file an application with the clerk of court from which the person is willing to accept referrals. The application must be accompanied by documentation that demonstrates that the applicant applying for designation as a mediator has net the requirements set forth in Rule 17-104. After any investigation that the county administrative judge chooses to make, the county administrative judge shall notify each applicant of the approval or disapproval of the application and the reasons for a disapproval. The clerk shall prepare a list of mediators found by the county administrative judge to meet the qualifications of Rule 17-104 and a separate list of persons found to meet the qualifications of Rule 17-105 for conducting other alternative dispute resolution proceedings. These lists shall be kept current by the clerk and be available in the clerks office to the public. After notice and a reasonable opportunity to respond the county administrative judge shall remove a person from a list if the person ceases to meet the applicable qualifications under Rule 17-104 or Rule 17-105, and the judge may remove a person for other good cause.Rule 17-108. FEE SCHEDULES
Subject to the approval of the Chief Judge of the Court of Appeals, the county administrative judge of each circuit court may develop and adopt maximum fee schedules for persons conducting each type of alternative dispute resolution proceeding other than on a volunteer basis. In developing the fee schedules, the county administrative judge shall take into account the availability of qualified persons willing to provide those services and the ability of litigants to pay for those services. A person designated by the court, other than on the agreement of the parties, to conduct an alternative dispute resolution under Rule 2-504 may not charge or accept a fee for that proceeding in excess of that allowed by the schedule. Violation of this rule shall be cause for removal from all lists.Rule 9-205. MEDIATION OF CHILD CUSTODY AND VISITATION DISPUTES
Promptly after an action subject to this Rule is at issue, the court shall determine whether both parties are represented by counsel and whether mediation of the dispute as to custody or visitation is appropriate and would likely be beneficial to the parties or the child, and if a properly qualified mediator is available to mediate the dispute. If counsel for a party or a child represents to the Court in good faith that there is a genuine issue of physical or sexual abuse of the parent or child, and that, as a result, mediation would be inappropriate, the court shall not order mediation. If the Court concludes that mediation is appropriate and feasible, it shall enter an order requiring the parties to mediate the custody or visitation dispute. The order may stay some or all further proceedings in the action pending the mediation on terms and conditions set forth in the order.MARYLAND COURTS & JUDICIAL PROCEEDINGS
TITLE 3. COURTS OF GENERAL JURISDICTION JURISDICTION/SPECIAL CAUSES OF ACTION
SUBTITLE 2. ARBITRATION AND AWARD
The following is a general interpretation of the statutes
of the Maryland Uniform Arbitration Act.
www.adr.org or www.westlaw.com
PROCEDURAL ISSUES
§ 3-204. DETERMINATION TO BE MADE WITHOUT A JURY
Any determinations or rulings to be made in regards
to questions or concerns raised in this subtitle are to be determined without a
jury.
§ 3-205. PETITION AND NOTICE
Petitions made under this subtitle are to be heard
in the manner and upon the notice provided for by the court in which the
petition is filed. Notice of the
initial petition for an order will be served in the same manner as a service of
summons. Issues of arbitration should
not be asserted in a motion raising preliminary objections under the Maryland
Rules. Trionfo & Sons v. LaRosa
& Sons, 38 Md.App. 598, 381 A.2d 727 (1978). www.westlaw.com
§ 3-202. Jurisdiction
The existence of an arbitration agreement between
disputing parties confers jurisdiction on a court to enforce the
agreement. Society of Am. Foresters
v. Renewable Natural Resources Found., 114 Md.App. 224, 689 A.2d 662
(1997). www.courts.state.md.us/opinions/cosa/1997/357s96.pdf As an incident of the court’s statutory
jurisdiction it has the power to order consolidation of a matter if it so
desires. Litton Bionetics, Inc. v.
Glen Constr. Co., 292 Md. 34, 437 A.2d 208 (1981). www.westlaw.com When an arbitration agreement exists, or is
alleged to exist, the courts are generally enjoined by the statute from
interfering with the arbitration process and the court’s jurisdiction may only
be invoked to either compel the arbitration or to stay the arbitration. Stauffer Constr. Co. v. Board of Educ.,
54 Md.App. 658, 460 A.2d 609 (1983). www.westlaw.com
§ 3-203. Venue
An initial petition shall be filed with the court in the
county provided for by the arbitration agreement or where the arbitration
hearing was held. If the arbitration
agreement does not provide for a county in which the petition is to be filed or
if the hearing has not been held, the petition shall be filed with the court in
the county where the adverse party resides; the county where the adverse party
has a place of business; or in the absence of either of these then the petition
may be filed in any county in the State.
Board of Educ. v.
Prince George’s County Educators’ Ass’n, 309 Md. 85, 522 A.2d 931 (1987).
www.westlaw.com
§ 3-207. Order to Arbitrate
If a party to an arbitration agreement refuses to
arbitrate then the other party may file a petition with a court to order
arbitration. If the opposing party
denies the existence of an arbitration agreement, the court shall determine if
the agreement exists. If the court
determines that the arbitration agreement exists it shall order arbitration,
otherwise it will deny the petition.
Suits to compel arbitration are viewed as favored actions
in the State of Maryland. Bel. Pre
Medical Ctr., Inc. v. Frederick Contractors, 21 Md.App. 307, 320 A.2d 558
(1974). www.westlaw.com Where there is a broad arbitration clause
calling for the arbitration of any and all disputes arising out of a contract,
all issues are arbitrable unless expressly and specifically excluded by the
arbitration agreement. Id. at
307. However if a party did not sign an
arbitration agreement or did not agree to the agreement they cannot be forced
into arbitration. Curtis G.
Testerman Co. v. Buck, 340 Md. 569, 667 A.2d 649 (1995). www.courts.state.md.us/opinions/coa/1995/45a95.pdf
§ 3-208. Stay of Arbitration
If a party denies the existence of an arbitration
agreement, they may petition a court to stay commenced or threatened
arbitration proceedings. A petition to
stay arbitration proceedings shall be filed with the court where the petition
to order arbitration was filed. If a
petition for an order to arbitrate has not been filed, the petition to stay
arbitration may be filed in any court subject to the normal venue
provisions. If the court determines
that there is a substantial and bona fide dispute as to the existence of an
arbitration agreement it will try the issue promptly and order a stay if it
finds for the petitioner and if it finds otherwise, it shall order the parties
to proceed with arbitration. Messersmith,
Inc. v. Barclay Townhouse Assocs., 313 Md. 652, 547 A.2d 1048 (1988). www.westlaw.com It is the intention of the parties that
controls on whether there is an agreement to arbitrate and the court should
take this into consideration when making their ruling. Crown Oil & Wax Co. v. Glen Constr.
Co., 320 Md. 546, 578 A.2d 1184 (1990). www.westlaw.com
§ 3-209. Stay of Proceedings
A court will stay any action or proceeding involving an
issue subject to arbitration if a petition for an order to arbitrate has been
filed or an order for arbitration has been made. Bel Pre Medical Ctr., Inc. v. Frederick Contractors, 21
Md.App. 307, 334 A.2d 558 (1974). www.westlaw.com If the issue subject to arbitration is
severable, the court may order the stay with respect to the severable issue
only. Charles J. Frank, Inc. v. Associated Jewish Charities of
Baltimore, Inc., 294 Md. 443, 450 A.2d 1304, (1982). www.westlaw.com If a petition to stay has been filed with a
court where any action or proceeding concerning arbitration is pending, the
court’s order to arbitrate will include the stay. Ordinarily arbitration should not be stayed in order to prevent
the prospect of for duplicative proceedings with the potential for inconsistent
results created by the voluntary actions of a complaining party. Id. at 443.
§ 3-210. When Order Not To Be Refused
An order for arbitration shall not be refused or an
arbitration proceeding stayed on the ground that the claim in issue lacks merit
or bona fides; or because a valid basis for the claim sought to be arbitrated
has not been shown. Where the parties
are in dispute as to whether an arbitration provision is enforceable the resolution
of that issue is for the court and all doubts are to be resolved in favor of
submitting the dispute to arbitration. Bloch
v. Bloch, 115 Md.App. 368, 693 A.2d 364 (1997). www.courts.state.md.us/opinions/cosa/1997/1275s96.pdf
ARBITRATION PROCESS
§ 3-211. Appointment of Arbitrators
If the arbitration agreement provides a method of
appointment of arbitrators, that method will be followed. If there is not a provision for the
appointment of arbitrators in the agreement a party may file a petition with a
court to appoint one or more arbitrators.
A court will appoint one or more arbitrators if the arbitration
agreement does not provide a method of appointment; if the agreed upon methods
fails or for any reason cannot be followed; or an appointed arbitrator fails or
is unable to act and his successor has not been appointed. A court appointed arbitrator has all the
powers of an arbitrator specifically named in the agreement. American Union of Baptists, Inc. v.
Trustees of Particular Primitive Baptist Church at Black Rock, Inc., 335
Md. 564, 644 A.2d 1063 (1994). www.westlaw.com
§ 3-212. Exercise of Power By Majority Of Arbitrators
The powers of the arbitrators may be exercised by a
majority, unless provided otherwise by the arbitration agreement or by this
subtitle. State v. Frazier, 79
Md.App. 118, 55 A.2d 1078 (1989). www.westlaw.com
§ 3-213. Arbitration Hearing and Notice
Unless the agreement provides otherwise, the arbitrators
shall designate a time and place for hearing and notify the parties, personally
or by certified mail, return receipt requested, bearing a postmark from the United
States Postal Service, not less than five days before the hearing. The arbitration hearing shall be conducted
by all the arbitrators. The arbitrators
may adjourn the hearing from time to time as necessary. Upon request of a party and for good cause shown
or on their own motion, the arbitrators may postpone the hearing to a time not
later than the date set by the agreement for the award, unless the parties
consent to a later date. The
arbitrators may hear and determine the controversy upon the evidence produced
notwithstanding the failure of a party duly notified to appear. On petition of a party, the court may direct
the arbitrators to proceed promptly with the hearing and determination of the
controversy. Bloch v. Bloch, 115
Md.App. 368, 693 A.2d 364 (1997). www.courts.state.md.us/opinion/cosa/1997/1275s96.pdf
§ 3-215. Determination by Arbitrators
The majority of the arbitrators may determine any
question and render a final award. If
an arbitrator for any reason ceases to act during the course of the arbitration
hearing, the remaining arbitrators or arbitrator appointed to act as neutral,
may continue with a hearing and the determination of the controversy. The decision of the arbitration panel need
not be unanimous. Carrion v. Linzey,
342 Md. 266, 675 A.2d 527 (1996).
www.courts.state.md.us/opinions/coa/1996/56a95.pdf
§ 3-217. Authority of Arbitrators to Issue Subpoenas and Administer Oath; Service of Subpoenas
The arbitrators may issue subpoenas for the attendance of
witnesses and for the production of books, records, documents, and other
evidence, and have the power to administer oaths. At the arbitration hearing a witness shall be sworn at the request
of a party or at the request of a majority of the arbitrators. A part or the arbitrators may file a petition
with a court to enforce a subpoena. A
subpoena will be enforced in the manner provided by law or rule for the
enforcement of subpoenas in a civil action.
All the provisions of the law that compel a person under subpoena to
testify apply to arbitration proceedings.
State v. Frazier, 79 Md.App. 118, 555 A.2d 1078 (1989). www.westlaw.com
§ 3-218. Depositions
The arbitrators may permit a deposition to be taken upon
the request of a party for use as evidence if a witness cannot be subpoenaed or
if a witness is unable to attend a hearing.
RIGHTS OF A PARTY GOING TO ARBITRATION
§ 3-214. Rights of Parties at Arbitration Hearing; Rules of Evidence
At an arbitration hearing, the parties have a right to be
heard; to present evidence material to the controversy; and to cross-examine
witnesses who appear at the hearing.
Arbitrators are not bound by the technical rules of evidence. Mayor of Baltimore v. Ohio Cas. Ins. Co.,
50 Md.App. 455, 438 A.2d 933 (1982); Karl
v. Davis, 100 Md.App. 42, 639 A.2d 214 (1994). www.westlaw.com
§ 3-216. Right to Be Represented By Attorney; When Waiver Ineffective
A party has the right to be represented by an attorney at
any proceeding or hearing under this subtitle.
A waiver of the right to be represented by an attorney prior to the
proceeding or hearing is ineffective.
AWARDS
§ 3-219. Arbitration Award
The arbitration award will be in writing and signed by
the arbitrators who joined in the award.
The arbitration award shall be made within the time set by the
agreement. If the agreement does not
set a time, a party may petition a court to set the time. The parties may extend the time for making
an award at any time in writing. The
arbitrators will deliver a copy of the award to each party as provided in the
agreement; personally ; or by certified mail, return receipt requested, bearing
a postmark from the United States Postal Service. A party that fails to notify the arbitrators of his objection
prior to the delivery of the award to him waives the objection that an award
was not made within the time required. Birkey
Design Group, Inc. v. Eagle Nursing Home, Inc. 113 Md.App. 261, 687 A.2d
256 (1997). www.courts.state.md.us/opinions/cosa/1997/409s96.pdf
§ 3-222. Modification or Correction of Award
A party may apply to the arbitrators to modify or correct
an award within 20 days after delivery of the award to the applicant. A written notice of an application to modify
or correct the award shall be given to the opposing party, stating that he
shall serve any objection to the application within ten days. The arbitrators may modify or correct an
award due to a party’s petition or for clarification purposes. Birkey Design Group, Inc. v. Eagle Nursing
Home, Inc. 113 Md.App. 261, 687 A.2d 256 (1997). www.courts.state.md.us/opinions/cosa/1997/409s96.pdf Parties waive their right to seek judicial
clarification of arbitrators’ award if the parties fail first to petition the
arbitrators to clarify the award. Id.
at 261.
§ 3-223. Correction or Modification of Award By Court
A petition to modify or correct the award shall be filed
within 90 days after delivery of a copy of the award to the applicant. C.W. Jackson & Assocs. V. Brooks,
46 Md.App. 63, 415 A.2d 640 (1980). www.westlaw.com The court will modify or correct the award
if there was an evident miscalculation of figures or an evident mistake in the
description of any person, thing, or property referred to in the award; the
arbitrators have awarded upon a matter not submitted to them and the award may
be corrected without affecting the merits of the decision upon the issues
submitted; or if the award is imperfect in a matter of form, not affecting the
merits of the controversy. Blitz v.
Beth Isaac Adas Isr. Congregation, 115 Md.App. 460, 694 A.2d 107
(1997). www.courts.state.md.us/opinions/cosa/1997/1361s96.pdf If the petition is granted the court will
modify or correct the award otherwise the court will confirm the award as it
was made. An application to modify or
correct an award may be joined with an application to vacate the award.
§ 3-224. Vacating Award
A petition to vacate an award will be filed within 30
days after the delivery of a copy of the award to the petitioner. International Longshoremen’s Ass’n v.
Cataneo, Inc., 990 F.2d 794 (4th Cir. 1993). www.westlaw.com If the petition alleges corruption, fraud,
or other undue means it shall be filed within 30 days after the grounds become
known or should have been known to the petitioner. The court will vacate an award if the award was procured by
corruption, fraud, or other undue means; if there was evident partiality by an
arbitrator appointed as a neutral, corruption in any arbitrator, or misconduct
prejudicing the rights of any party; the arbitrators exceeded their powers; the
arbitrators refused to postpone the hearing upon sufficient cause being shown
for the postponement, refused to hear evidence material to the controversy, or
otherwise so conducted the hearing as to prejudice substantially the rights of
a party; or there was no arbitration agreement , the issue was not adversely
determined in the proceedings, an the party did not participate in the
arbitration hearing with out raising the objection. Graceman v Goldstein, 93 Md.App. 658, 613 A.2d 1049
(1992). www.westlaw.com The court will not vacate the award or
refuse to confirm the award on the ground that a court of law or equity could
not or would not grant the same relief.
§ 3-225. Rehearing Before Arbitrators
If any award is vacated the court may under certain
circumstances order a rehearing before new arbitrators selected by the parties
as provided for by the agreement, or by the court in the absence of an
agreement. The court may also choose to
order a rehearing before the arbitrators who made the award or their
successors. The time within which the
agreement requires the award to be made is applicable to the rehearing and
commences from the date of the order or at a time specified by the court.
§ 3-226. Denial of Petition to Vacate
If an application to vacate is denied and no motion to
modify or correct the award is pending, the court shall confirm the award. Washington Homes, Inc. v. Interstate Land
Dev. Co., 281 Md. 712, 382 A.2d 555 (1978). www.westlaw.com
§ 3-227. Confirmation of Award By Court
A party may petition the court to confirm an award. The court will confirm the award, unless the
other party has filed a timely application to vacate, modify, or correct the
award. State Cent. Collection Unit
v. Gettes, 321 MD. 671, 584 A.2d 689 (1991). www.westlaw.com If an application to vacate, modify, or
correct the award has been filed the court shall proceed upon those
applications. This section establishes
an orderly mechanism whereby a court, not an arbitrator, makes the final
determination of the legality of a contract before an arbitration award is
enforced. Board of Educ. v.
Education Ass’n, 286 Md. 358, 408 A.2d 89 (1979). www.westlaw.com
§ 3-228. Judgment, Costs, and Disbursements
If an order confirming, modifying, or correcting an award
is granted, a judgment shall be entered in conformity with the order. The judgment may be enforced as any other
judgment. A court may award costs of
the petition, the subsequent proceedings, and disbursements. This section does not apply to the awarding
of attorney’s fees. Blitz v. Beth
Isaac Adas Isr. Congregation, 115 Md.App. 460, 694 A.2d 107 (1997). www.courts.state.md.us/opinions/cosa/1997/1361s96.pdf
FEES AND EXPENSES
§ 3-220. Witness Fees; Transcript of Proceedings
Fees for attendance as a witness are the same as for a
witness in the circuit courts of the State.
The arbitrators may, and on application of a party will, order that part
or all of the proceedings be transcribed.
The record made from the transcript will be available to either side for
purpose of appeal or otherwise. A
party’s failure to order a transcript may not be converted into their advantage
by having the court rehear that which the arbitrator heard. Wicomico County Educ. Ass’n v. Board of
Educ., 59 Md.App. 564, 477 A.2d 279 (1984). www.westlaw.com
§ 3-221. Expenses and Fees
Unless the arbitrators agreement provides otherwise, the
award shall provide for payment of the arbitrators’ expenses, fees, and any
other expenses incurred in the conduct of the arbitration, however the award
may not include counsel fees. Bernard
v. Kuhn, 65 Md.App. 557, 501 A.2d 480 (1985). www.westlaw.com
DEATH OF A PARTY
§ 3-229. Death or Incompetence of Party
Notwithstanding the death of a party who made a written
agreement to submit a controversy to arbitration, the arbitration proceedings
may begin or continue if an application has been filed by or notice given to
his personal representative. If a
guardian has been appointed, the proceedings may be continued upon the
application of the guardian or upon the notice to the guardian. Upon the death or incompetence of a party,
the court may extend the time within which a petition to confirm, vacate, or
modify the award, or stay arbitration, must be made. If a party dies after an award was delivered, the subsequent
proceedings are the same as where a party dies after a verdict.
§ 3-230. Proceedings Upon the Death of a Party
If a party dies before an award is returned and judgment
rendered, the cause does not abate and the arbitrators shall give a reasonable
notice of the pending proceedings to the personal representative. Notwithstanding the death of a party, the
arbitrators shall proceed with a determination and return their award upon
which judgment may be entered.
EMPLOYER AND EMPLOYEE ARBITRATIONS
§ 3-206. Validity of Arbitration Agreements; Agreements Between Employers and Employees
A written agreement to submit any existing controversy to
arbitration or a provision in a written contract to submit to arbitration any
controversy arising between the parties in the future is valid and enforceable,
and is irrevocable, except upon grounds that exist at law or in equity for the
revocation of a contract. This does not
apply to an arbitration agreement between employers and employees or between
their respective representatives unless it is expressly provided otherwise in
the arbitration agreement. Wilson v.
McGrow, Pridgeon, & Co., 298 Md. 66, 467 A.2d 1025 (1983). www.westlaw.com
EFFECTS OF THE STATUTE
§ 3-231. Subtitle Not Retroactive
This subtitle applies
only to agreements made after May 31, 1965.
§ 3-323. Uniformity of Interpretation
This subtitle shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it. Wilson v. McGrow, Pridgeon, & Co., 298 Md. 66, 467 A.2d 1025 (1983). www.westlaw.com