Rule 102. Conduct of nonbinding arbitration proceedings.

(a) Selection of arbitrator(s). The arbitrator(s) shall be selected as provided in Code of Judicial Administration Rule 4-510.05(4).

(b) Pre-hearing conference.

(1) Scheduling, purposes, and participants. Within 30 days after selection of the arbitrator(s), the arbitrator(s) shall conduct a pre-hearing conference for the purposes of: reviewing the case; assisting the parties in defining and narrowing the issues; determining the scope and timing of any discovery, including the exchange of disclosure statements; reaching a stipulation for admission of facts and documents; identifying witnesses; determining the necessity of subpoenas; and scheduling the arbitration hearing. All participating parties or their counsel shall attend the pre-hearing conference. The arbitration hearing shall be held within 120 days of the date of the pre-hearing conference.

(2) Written and oral testimony. Where appropriate in the course of the pre-hearing conference, the arbitrator(s) shall: encourage the use of stipulations, affidavits, proffers of testimony, written submission of expert opinions, and other timesaving evidentiary tools and procedures; and instruct the parties to limit live testimony, if any, to the resolution of factual disputes and witness credibility issues. The arbitrator(s) also shall instruct the parties that, unless otherwise authorized by the arbitrator(s) or agreed upon by the parties, issues other than those defined in the pre-hearing conference shall not be raised at the arbitration hearing and will not be considered in determining any arbitration award.

(c) Interim procedural orders; continuance. The arbitrator(s) shall have the power to make such interim procedural orders in furtherance of the purposes of the arbitration proceeding and these rules as are deemed necessary and appropriate. Upon motion by any party or its own motion, the arbitrator(s) may continue the arbitration hearing, provided the hearing is commenced within 30 days of the original date set at the pre-hearing conference. Except as to matters of pre-hearing scheduling, or continuance of the arbitration hearing, no party or counsel for a party shall communicate ex parte with the arbitrator(s) concerning the case.

(d) Change to mediation. At any time prior to the conclusion of the arbitration hearing the parties may agree to submit the matter to mediation. Written notice signed by all parties and counsel of such agreement shall be sent to the Director. The mediator may not be the same person as the arbitrator(s) unless the parties by agreement request that one of the arbitrator(s) serves as the mediator.

(e) Exhibits; objections; waiver. Not less than 20 days nor more than 30 days before the arbitration hearing, a party who intends to offer documentary evidence at the arbitration hearing shall serve copies of the exhibits, together with written notice of that party's intention to offer the same, upon all participating parties and the arbitrator(s). Not less than 7 days before the arbitration hearing, each party may serve upon the offering party and the arbitrator(s) written objections to one or more of the exhibits, specifying the exhibit and the specific grounds for objection. Any objections to any exhibit based upon any issue of evidentiary foundation, authentication, or hearsay not served as provided herein shall be deemed to be waived. Each party shall mark all original exhibits and copies prior to the arbitration hearing.

(f) Discovery. Discovery shall be stayed during the pendency of the arbitration proceedings, except as stipulated by the parties. Subpoenas for the production of evidence by nonparties may be issued, served and enforced by the court as provided by the Utah Rules of Civil Procedure.

(g) Record of proceedings. Any participating party, at that party's own expense and upon 5 days notice to the arbitrator(s) and the other participating parties, may make arrangements for stenographic or other non-video recording of the arbitration hearing and cause a transcript to be made of the proceedings, provided that a copy of any such transcript or recording shall be supplied to the arbitrator(s) at no charge. Copies of the transcript or recording shall be made available to all participating parties upon request and at a reasonable expense. Such transcript is not admissible in any subsequent de novo trial, but may be used in connection with a motion to modify or vacate an award. No other disclosure of the transcript or its contents may be made. All transcripts shall be destroyed at such time as an award becomes final or upon a demand for a trial de novo.

(h) Arbitration hearing. The arbitration hearing shall be commenced at the place, date, and time designated and shall be conducted by the arbitrator(s). The arbitrator(s) may administer oaths. If a panel is used, the chair shall preside. The arbitration hearing may proceed in the absence of any party who, after written notice of the scheduling of the hearing, does not appear. At the request of any participating party, non-party witnesses, except when testifying, shall be excluded from the arbitration hearing. The arbitrator(s) shall determine the mode and order of presentation of issues, argument, the testimony of witnesses, and other evidence, limiting the amount of time to which each party is entitled. The burden of proof among the parties shall be allocated and presumptions, if any, shall apply, as if at trial before the court. The arbitrator(s) shall not have the authority to rule on summary judgment motions or other motions pending in the litigation.

(1) Each party to the arbitration proceeding is entitled, in person or through counsel, to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing.

(2) If the arbitrator(s) finds it necessary to make an inspection or other outside investigation, the arbitrator(s) shall designate the date, time and place of the same, and shall notify all parties and counsel, who may be present at such inspection or investigation if desired.

(3) The arbitrator(s) shall specifically inquire of all parties whether they have any further proof to offer or witnesses to be heard. Upon receiving negative replies and if satisfied that the record is complete, the arbitrator(s) shall declare the hearing closed. If post-hearing briefs are to be filed, the hearing shall be declared closed as of the final date set by the arbitrator(s) for the receipt of briefs.

(4) At any time before the award is made, the arbitration hearing may be reopened on the arbitrator's initiative, or for good cause shown upon application of a party. If the reopening is requested to consider additional issues, the reopening may be held only if all parties agree.

(5) If the parties settle the dispute during the course of the arbitration, the arbitrator may set forth the terms of the agreed settlement in an award.

(i) Issues to be decided. Absent a stipulation by all parties, the arbitrator(s) shall make no determination regarding issues not defined at the pre-hearing conference or subsumed therein. Where the arbitrator(s) determines that such other issues must be determined in order to render an award, and the parties agree to determination of such issues, the parties shall be allowed to present any additional evidence and argument as is necessary to resolve such issues.

(j) Evidence; admissibility; applicability of utah rules of evidence. All oral testimony at the arbitration hearing shall be taken under oath or affirmation. The arbitrator(s) shall determine the admissibility of evidence offered at the arbitration hearing. The arbitration hearing shall be conducted in general conformity with the Utah Rules of Evidence, but the arbitrator(s) may receive evidence otherwise inadmissible if the arbitrator(s) finds the evidence to be relevant and trustworthy and the receipt of such evidence is not unfairly prejudicial to any party against whom it is offered and does not violate any rule of privilege. The arbitrator(s) may take judicial notice of adjudicative facts.

(k) Privacy and confidentiality of arbitration proceedings. To protect and preserve the privacy and confidentiality of an arbitration proceeding and the privacy rights of the parties, all proceedings shall be subject to Rule 103, unless all parties have stipulated that the proceeding be open to the public. Any disclosure statements made or prepared incident to any ADR process shall be treated as negotiations in compromise and shall be subject to exclusion as provided in Rule 408 of the Utah Rules of Evidence.

(l) Arbitration award.

(1) The arbitrator(s) shall prepare and file with the clerk of the court an award within 20 days after the conclusion of the arbitration hearing, and shall mail copies of the award to all participating parties and counsel of record and to the Director.

(2) The award shall be in writing, signed by the arbitrator(s), and shall state with particularity the name(s) of the prevailing party or parties, the name(s) of the party or parties against whom the award is rendered, and the precise amount(s) of the award. With respect to monetary relief, the arbitrator(s) may, but is not required to, make findings of fact or otherwise explain the basis of the award. If issues of law are involved, the award shall specify such issues and how they were resolved. Where equitable or other nonmonetary relief is sought, the award shall state with particularity the nature and extent of such relief, if any, found to be an appropriate remedy.

(3) Upon filing of the award, Utah Code Section 78B-6-206 shall apply.

(4) In all matters where a hearing before a judge is required by law, the final arbitration award shall be treated as a stipulation by the parties.

(5) If, upon trial de novo, the party filing a demand therefor has not achieved a better result than provided in the award, such party shall pay all arbitration fees and costs and the attorneys' fees of the other party. The payment obligation that may be imposed pursuant to this paragraph shall not exceed the lesser of 20% of the amount of the original monetary award or $2,000.

(m) No interlocutory appeal. may be taken from an order granting or denying a motion to refer a civil action pending on January 1, 1995 to the ADR program.