Rule102. Conduct of nonbinding arbitration proceedings.
(a) Selection of arbitrator(s). Thearbitrator(s) shall be selected as provided in Code of Judicial AdministrationRule 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) shallconduct a pre-hearing conference for the purposes of: reviewing the case;assisting the parties in defining and narrowing the issues; determining thescope and timing of any discovery, including the exchange of disclosurestatements; reaching a stipulation for admission of facts and documents;identifying witnesses; determining the necessity of subpoenas; and schedulingthe arbitration hearing. All participating parties or their counsel shallattend the pre-hearing conference. The arbitration hearing shall be held within120 days of the date of the pre-hearing conference.
(2) Written and oral testimony. Whereappropriate 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 toolsand procedures; and instruct the parties to limit live testimony, if any, tothe resolution of factual disputes and witness credibility issues. Thearbitrator(s) also shall instruct the parties that, unless otherwise authorizedby the arbitrator(s) or agreed upon by the parties, issues other than thosedefined in the pre-hearing conference shall not be raised at the arbitrationhearing 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 ordersin furtherance of the purposes of the arbitration proceeding and these rules asare deemed necessary and appropriate. Upon motion by any party or its ownmotion, the arbitrator(s) may continue the arbitration hearing, provided thehearing is commenced within 30 days of the original date set at the pre-hearingconference. Except as to matters of pre-hearing scheduling, or continuance ofthe arbitration hearing, no party or counsel for a party shall communicate exparte with the arbitrator(s) concerning the case.
(d) Change to mediation. At any time priorto the conclusion of the arbitration hearing the parties may agree to submitthe matter to mediation. Written notice signed by all parties and counsel ofsuch agreement shall be sent to the Director. The mediator may not be the sameperson as the arbitrator(s) unless the parties by agreement request that one ofthe arbitrator(s) serves as the mediator.
(e) Exhibits; objections; waiver. Not lessthan 20 days nor more than 30 days before the arbitration hearing, a party whointends to offer documentary evidence at the arbitration hearing shall servecopies of the exhibits, together with written notice of that party's intentionto offer the same, upon all participating parties and the arbitrator(s). Notless than 7 days before the arbitration hearing, each party may serve upon theoffering party and the arbitrator(s) written objections to one or more of theexhibits, specifying the exhibit and the specific grounds for objection. Anyobjections to any exhibit based upon any issue of evidentiary foundation,authentication, or hearsay not served as provided herein shall be deemed to bewaived. Each party shall mark all original exhibits and copies prior to thearbitration hearing.
(f) Discovery. Discovery shall be stayedduring the pendency of the arbitration proceedings, except as stipulated by theparties. 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 participatingparty, 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 orother non-video recording of the arbitration hearing and cause a transcript tobe made of the proceedings, provided that a copy of any such transcript orrecording shall be supplied to the arbitrator(s) at no charge. Copies of thetranscript or recording shall be made available to all participating partiesupon request and at a reasonable expense. Such transcript is not admissible inany subsequent de novo trial, but may be used in connection with a motion tomodify or vacate an award. No other disclosure of the transcript or itscontents may be made. All transcripts shall be destroyed at such time as anaward becomes final or upon a demand for a trial de novo.
(h) Arbitration hearing. The arbitrationhearing shall be commenced at the place, date, and time designated and shall beconducted by the arbitrator(s). The arbitrator(s) may administer oaths. If apanel is used, the chair shall preside. The arbitration hearing may proceed inthe absence of any party who, after written notice of the scheduling of thehearing, does not appear. At the request of any participating party, non-partywitnesses, except when testifying, shall be excluded from the arbitrationhearing. The arbitrator(s) shall determine the mode and order of presentationof issues, argument, the testimony of witnesses, and other evidence, limitingthe amount of time to which each party is entitled. The burden of proof amongthe parties shall be allocated and presumptions, if any, shall apply, as if attrial before the court. The arbitrator(s) shall not have the authority to ruleon summary judgment motions or other motions pending in the litigation.
(1) Each party to the arbitration proceedingis entitled, in person or through counsel, to be heard, to present evidencematerial to the controversy, and to cross-examine witnesses appearing at the hearing.
(2) If the arbitrator(s) finds it necessaryto make an inspection or other outside investigation, the arbitrator(s) shalldesignate the date, time and place of the same, and shall notify all partiesand counsel, who may be present at such inspection or investigation if desired.
(3) The arbitrator(s) shall specificallyinquire of all parties whether they have any further proof to offer orwitnesses to be heard. Upon receiving negative replies and if satisfied thatthe record is complete, the arbitrator(s) shall declare the hearing closed. Ifpost-hearing briefs are to be filed, the hearing shall be declared closed as ofthe 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 forgood cause shown upon application of a party. If the reopening is requested toconsider additional issues, the reopening may be held only if all partiesagree.
(5) If the parties settle the dispute duringthe course of the arbitration, the arbitrator may set forth the terms of theagreed settlement in an award.
(i) Issues to bedecided. Absent a stipulation by all parties, the arbitrator(s) shall make nodetermination regarding issues not defined at the pre-hearing conference orsubsumed therein. Where the arbitrator(s) determines that such other issuesmust be determined in order to render an award, and the parties agree todetermination of such issues, the parties shall be allowed to present any additionalevidence and argument as is necessary to resolve such issues.
(j) Evidence; admissibility; applicabilityof utah rules of evidence. All oral testimony at thearbitration hearing shall be taken under oath or affirmation. The arbitrator(s)shall determine the admissibility of evidence offered at the arbitrationhearing. The arbitration hearing shall be conducted in general conformity withthe Utah Rules of Evidence, but the arbitrator(s) may receive evidenceotherwise inadmissible if the arbitrator(s) finds the evidence to be relevantand trustworthy and the receipt of such evidence is not unfairly prejudicial toany party against whom it is offered and does not violate any rule ofprivilege. The arbitrator(s) may take judicial notice of adjudicative facts.
(k) Privacy and confidentiality ofarbitration proceedings. To protect and preserve the privacy andconfidentiality of an arbitration proceeding and the privacy rights of theparties, all proceedings shall be subject to Rule 103, unless all parties havestipulated that the proceeding be open to the public. Any disclosure statementsmade or prepared incident to any ADR process shall be treated as negotiationsin compromise and shall be subject to exclusion as provided in Rule 408 of theUtah Rules of Evidence.
(l) Arbitration award.
(1) The arbitrator(s) shall prepare and filewith the clerk of the court an award within 20 days after the conclusion of thearbitration hearing, and shall mail copies of the award to all participatingparties and counsel of record and to the Director.
(2) The award shall be in writing, signed bythe arbitrator(s), and shall state with particularity the name(s) of theprevailing party or parties, the name(s) of the party or parties against whomthe award is rendered, and the precise amount(s) of the award. With respect tomonetary relief, the arbitrator(s) may, but is not required to, make findingsof fact or otherwise explain the basis of the award. If issues of law areinvolved, the award shall specify such issues and how they were resolved. Whereequitable or other nonmonetary relief is sought, the award shall state withparticularity the nature and extent of such relief, if any, found to be anappropriate remedy.
(3) Upon filing of the award, Utah CodeSection 78B-6-206 shall apply.
(4) In all matters where a hearing before ajudge is required by law, the final arbitration award shall be treated as astipulation by the parties.
(5) If, upon trial de novo, the party filinga demand therefor has not achieved a better resultthan provided in the award, such party shall pay all arbitration fees and costsand the attorneys' fees of the other party. The payment obligation that may beimposed pursuant to this paragraph shall not exceed the lesser of 20% of theamount of the original monetary award or $2,000.
(m) No interlocutory appeal. may be takenfrom an order granting or denying a motion to refer a civil action pending onJanuary 1, 1995 to the ADR program.