Under Virginia law, parties to a dispute may agree to submit their differences to arbitration. Arbitration provides a fair, effective and expeditious complaint settlement procedure. It is a system of redress which provides an independent mechanism to resolve consumer-business disputes when other means fail.
Specific statutory language makes these agreements enforceable in any court of the Commonwealth having jurisdiction over the subject of the dispute. Arbitration agreements can be as binding as any other contract. The Consumer Affairs Branch (CA) of the Fairfax County Department of Cable and Consumer Services (DCCS) conducts its arbitration program in keeping with this law.
Either party to a dispute may initiate arbitration provided that mediation efforts by CA have been exhausted. Both parties must agree to the proceeding before it can begin, and the proceeding is limited to the subject of the previously unsuccessful mediation.
The arbitration procedure calls for a panel of three arbitrators to be selected from a pool of trained arbitrators. Each party to the proceedings will select an arbitrator from the roster, and these two arbitrators will then select the third member of the panel. Because CA underwrites all ordinary administrative expenses and schedules the proceedings at convenient hours, arbitration is an inexpensive alternative to the court for settling consumer-business disputes. Arbitration offers the following advantages to the parties:
- It is easily accessible to consumers and merchants.
- Arbitrators are volunteers drawn from a pool maintained by CA, and their impartiality is assured before their appointment to hear and decide any given case.
- The procedures of an arbitration panel are simple, informal, and involve little or no cost to the participants.
- An arbitration decision is applicable to a range of consumer-business transactions; it can be legally binding on both parties and enforced by the courts.
RULES OF PROCEDURE
These rules shall apply to consumer disputes filed with CA pursuant to a written agreement to arbitrate. However, no consumer dispute shall be submitted to arbitration prior to exhaustion of mediation by CA.
(a) Consumer disputes are any disagreements between a business and a consumer who has filed a complaint with CA, regarding the sale or rental of any product or provision of a service. These disputes do not include demands for damages from personal injury. If, during the course of any proceeding conducted pursuant to these rules, it appears to the arbitrators that the issues before them do not coincide with this definition, they must suspend the hearing or narrow the issues to those that fall within this definition.
(b) Administrator refers to the Director of the Department of Cable and Consumer Services or his/her designee.
(c) Arbitrators refers to the panel selected in accordance with Section 4 of these rules which hears specific disputes and makes a final decision or award.
If mediation has failed to resolve a dispute, CA staff may suggest, or either party may request, that the dispute be arbitrated. Arbitration may be commenced under these rules by either party filing a signed Submission to Arbitration Agreement with CA.
The Agreement shall contain: the names and addresses of both parties; a statement of the nature of the claim; the remedy or adjustment sought (including a specific dollar amount or specific services requested); the names of any persons who shall be present at the hearing to accompany and/or assist the consumer or the business; and the names of any attorneys who will be representing the consumer or the business. The Agreement shall bind the parties (1) to arbitrate in good faith pursuant to these rules, (2) to permit inspections or visitations by the panel, and (3) to submit materials involved in a dispute to technically competent persons for examination as deemed advisable and selected by the panel.
The Administrator shall forward the Agreement to the other party involved within five (5) days from the date of receipt. The non-initiating party shall sign the Agreement and return it to the Administrator within ten (10) days. Failure of the non-initiating party to return the signed Agreement to the Administrator within ten (10) days from the date of mailing or personal service will be considered as a rejection of arbitration. Notice of the acceptance or rejection of arbitration shall be promptly given to the initiating party by the Administrator. If the non-initiating party has accepted arbitration, the Administrator shall send a copy of the completed Agreement to the initiating party.
The Administrator shall maintain a pool of volunteers from which the panel of arbitrators shall be selected. Upon receipt of the signed Agreement from both parties to a dispute, the Administrator shall provide each with an identical list of names of six (6) potential arbitrators. Each party shall have seven (7) days from the mailing date to select one arbitrator from the list to sit on the panel. Each arbitrator so selected will be designated on the form provided.
The two arbitrators selected by the parties shall in turn choose a mutually acceptable third arbitrator from the four (4) candidates remaining on the list. This third arbitrator shall serve as Chairperson and convener of the panel.
If the list of potential arbitrators is not returned, all persons named thereon shall be deemed acceptable to the parties and the Administrator shall then designate an arbitrator for any party failing to register a preference. In the event both parties select the same arbitrator, that individual shall be deemed Chairperson and convener of the panel; each party shall then select another arbitrator from the five (5) candidates remaining on the list. This resubmission shall conform in all other respects to the procedure specified for the initial selection of arbitrators. If both parties again select the same arbitrator from the five (5) candidates remaining on the list, the newly selected arbitrator and the Chairperson shall choose a mutually acceptable third arbitrator from the four (4) candidates remaining on the list.
No person shall serve as an arbitrator in any dispute in which he or she has a financial or personal interest. Prior to accepting an appointment, a prospective arbitrator shall disclose any circumstances which he or she believes might disqualify him or her as impartial, or which might create a presumption of bias. All doubts shall be resolved in favor of disclosure. The Administrator shall transmit information relative to such disclosures to the parties and afford them the opportunity to indicate the unacceptability of any arbitrator chosen. Unacceptable or disqualified arbitrators shall be replaced in accordance with the procedures specified in Section 7 of these rules.
The arbitrators must sign an oath to faithfully and fairly hear and examine the matters in controversy. Notices of Appointment and the Arbitrators Oath shall be mailed to the arbitrators by the Administrator along with a copy of these rules. The signed and dated Arbitrators Oath and Notice of Appointment shall be returned to the Administrator within five (5) days of receipt.
The Administrator shall act to fill any vacancy created if an arbitrator is unwilling or unable to serve for any reason, by requesting the party or arbitrators who made the initial selection to designate a substitute from a revised list. The revised list shall be identical to that previously submitted excepting deletions made for individuals who are unable or unwilling to serve. The selection process will be as outlined in Section 4.
There shall be no direct communication between the parties and the panel regarding the dispute other than at oral hearings, and the occurrence of any such communication can be considered cause to void an award. Any other communication from the parties to the panel (and vice versa) shall be transmitted through the Administrator. Any party agreeing to arbitration pursuant to these rules shall be deemed to have consented that any notices or other communication relevant to the arbitration proceeding may be mailed to the party at his or her last known address, unless otherwise specified in these rules.
Upon appointment of the panel, the Administrator shall promptly establish a date, time and place for oral hearings with due regard for the convenience of the participants. Once determined, a notice of hearing shall be sent to the parties and members of the panel at least five (5) days in advance of the date set for the hearing. The Administrator shall attempt to obtain full agreement or compliance as to the time and place of the hearing prior to issuing notice of the scheduling. Objections or inability to comply with the announced scheduling shall be submitted to the Administrator in writing not later than three (3) days after receipt of the notice. The Administrator shall again endeavor to determine a mutually satisfactory time and place for the hearing. In each such instance the Administrator will have the final decision in evaluating the need for rescheduling. Objections to an announced hearing date or place shall not act to unduly delay or frustrate the arbitration procedure. The Administrator shall have the option of authorizing a hearing to take place in the absence of one of the parties to the dispute in accordance with the procedures specified in Section 13 of these rules.
All controversies submitted to an arbitration panel shall be settled by a majority vote, including procedural questions and issues relating to the Award.
At all oral hearings, the parties and any witnesses shall be placed under the following oath by the Chairperson of the panel: "Do you solemnly swear or affirm that all of the testimony you give in this case will be the truth, the whole truth, and nothing but the truth?".
(a) The Chairperson of the panel shall read aloud the "nature of the claim" and the "remedy or adjustment sought" sections of the Submission to Arbitration Agreement to verify that both parties have in fact agreed to arbitrate the particular dispute.
(b) The Chairperson of the panel shall administer the oath to all testifying persons.
(c) The initiating party shall then present his or her claims, evidence material to the controversy, and witnesses, if any, and shall, with such witnesses, submit to questions from the panel and respondent.
(d) The responding party shall then present his or her claims, evidence material to the controversy, and witnesses, if any, and shall, with such witnesses, submit to questions from the panel and the initiating party.
(e) The order of the proceedings may vary at the discretion of the panel provided that full opportunity is given each party to present all evidence necessary for a decision.
(f) The panel shall declare the hearing closed if no party has further evidence to offer or witnesses to present. At the discretion of the panel a hearing may be continued at a later date which is mutually agreed to by the parties.
Arbitration hearings may proceed in the absence of any party who, after due notice of the hearing, fails to appear, but such absence shall not be the basis for a default judgment. Rather, the attending party shall submit evidence and the panel may render an award based thereon.
Parties to the dispute shall have the right to bring any witnesses having knowledge of any of the matters under dispute. The Administrator may permit persons not having a direct interest in the dispute to attend hearings by obtaining the oral consent of the parties. The foregoing shall not preclude attendance at the proceedings of an interpreter to assist any party who would otherwise experience a language or communication problem. The panel may permit a deposition to be taken of a witness who is unable to attend the hearing. The panel shall have the discretion to require any person to temporarily leave the hearing room when the panel deems his or her presence to be unnecessary or undesirable.
A party has the right to be represented by an attorney at any proceeding or hearing. A waiver of this right prior to the proceeding or hearing is ineffective.
The parties may offer such evidence material to the controversy and shall produce such additional evidence as the panel may deem necessary to an understanding and determination of the dispute. The panel shall be the judge of the relevance or propriety of the evidence offered. Evidence not authorized by law shall not be admitted, however, the panel is within its authority to consider hearsay evidence.
Evidence shall be taken in the presence of the panel and all the parties, except where a party has in any manner waived the right to be present, or where additional evidence requested by the panel is to be submitted after the hearing. All documents not filed but arranged for at the hearing shall be submitted to the Administrator for transmittal to the panel. Each party shall be afforded an opportunity to examine and challenge these documents under conditions specified by the panel so as to provide for both equity and expediency in making an award.
The Administrator shall see that a complete record of the proceedings is made by tape recording, stenographic transcript, or other appropriate means and maintained for use by the panel, the Administrator, the parties and the court. This record shall be maintained by the Administrator for the period of one (1) year or such longer time as may be required if ordered by a court of competent jurisdiction. This record shall be made available to any party to the dispute upon request, provided that the cost of duplicating the record shall be borne by the requesting party and that all parties have access to such record. No party shall be prevented from recording the proceedings by any of the means specified for his or her personal use. Public disclosure and distribution of the record shall not be made unless the mutual consent of the parties is obtained in writing, or pursuant to a proper Freedom of Information Act (FOIA) request.
Whenever the panel deems it necessary to make an inspection or investigation in connection with the arbitration, it shall advise the parties of its intention. Any party who so desires may be present at such inspection or investigation, and may comment on the inspection or investigation. In the event that one or both parties are not present at the inspection or investigation, the panel shall allow them the opportunity to comment. If at all possible, inspections should be arranged prior to a hearing.
At the discretion of the panel, a hearing may be adjourned from time to time as necessary. Upon request of a party for good cause, or upon its own motion, the panel may postpone the hearing. No hearing shall be reopened after an award has been made.
Any party who proceeds after actual knowledge that a provision of these rules has not been complied with and who fails to object thereto in writing prior to the time within which the award is to be made shall be deemed to have waived the right to object.
Facilities for holding the hearings, maintenance of records, and the attendance of interpreters shall be provided for by the Administrator. All normal administrative costs are to be borne by the Administrator, with extraordinary costs, as determined by the Administrator, assessed equitably between the parties. Every effort shall be made to keep extraordinary costs to a minimum by scheduling hearings and inspections during convenient hours, underwriting the expense, where possible, of any evidentiary materials requested by the panel, etc. Costs relative to recording the proceedings for personal use and witnesses for either side shall be the responsibility of the requesting party.
(a) Time of the Award. The award shall be made promptly by the panel and no later than ten (10) days from the closing of the hearings. If a hearing has been adjourned or postponed, an award shall be made no later than ten (10) days from the closing of the last hearing.
(b) Form of the Award. The award shall be in writing and signed by the arbitrators joining in the award.
(c) Scope of the Award. The panel may grant any relief or remedy within the scope of the arbitration agreement deemed just, equitable and allowable under Virginia law. The remedy or relief shall be applicable only to the parties themselves.
(d) Delivery of the Award. The award shall be recorded on an Award Form and transmitted to the Administrator. The Administrator shall deliver a copy of the award to each party personally or by registered mail.
(e) Settlement Prior to the Award. If the parties settle their dispute during the course of a proceeding prior to rendering of an award, and upon the parties' written request, the panel may set forth the terms of the agreed settlement as an award.
(f) Change of Award by Panel. If there is an evident miscalculation of figures or a mistake in the description of any person, thing or property referred to in the award, or if the award is imperfect in a matter of form not affecting the merits of the controversy, a party may apply for modification by bringing this matter to the attention of the Administrator. Application for modification must be made within twenty (20) days after delivery of the award. Written notice of the application for modification shall be given to the opposing party by the Administrator, stating that he or she must serve any objections to the modification within ten (10) days from receipt of the notice. The Administrator shall forward to the panel the application for modification together with any objections received thereto. The panel may then effect the appropriate modification and the Administrator shall immediately transmit any such modification to the parties. The modified award shall supersede any previously issued award.
(g) Confirmation, Vacation, Modification or Correction of Award by Court. Either party may apply to a Virginia court having jurisdiction over the subject matter of the controversy for confirmation, vacation, modification or correction of an award as provided by law.
The panel shall interpret and apply these rules insofar as they relate to the powers and duties of the panel. All other rules shall be interpreted and applied by the Administrator, who shall also decide questions of rule interpretation referred by the panel. In all cases, the rules shall be interpreted broadly and construed so as to facilitate the rendering of an impartial, just, and timely arbitration decision.
Virginia Code, Sections 8.01-577 through 8.01-581.016 (1992, as amended) shall govern these rules and apply to all awards. Virginia law provides that parties to a controversy may agree to submit their differences to arbitration, with the stipulation that the award may be returned to and entered as a judgment of a court of the Commonwealth having jurisdiction over the subject matter of the controversy.
The law provides that arbitration agreements may be as binding as any other agreements and that arbitration awards may be enforced through the courts. Specific statutes governing the validity of written arbitration agreements, enforcement of arbitration awards through the court, and the power of a court to vacate an arbitration award are contained in the Virginia Code sections cited above. These aspects of the arbitration process are beyond the authority of the Department of Cable and Consumer Services, and the scope of these rules. Any questions arising in these areas should be referred to an attorney experienced in the field of arbitration.