Binding arbitration is that process where parties present evidence to a Neutral third party (an “arbitrator”) who is empowered to make and legally-binding decision or “award” that is enforceable in a court of law. In an arbitration before a CMMA arbitrator, unless otherwise agreed between all of the parties, a CMMA arbitration follows the
CMMA Arbitration Rules. Arbitration is used to resolve all forms of civil disputes, including but not limited to commercial disputes, personal injury claims, consumer and employment matters, real property disputes, and family law matters and will contests. 

Arbitration before a CMMA Neutral provides many benefits, including, 

• Finality: The decision of the arbitrator is binding and appeals to a court are quite limited; thus, when the arbitration decision is rendered, the matter is usually over. Parties choose arbitration knowing that, whatever the result, their case will be over and they can get back to their lives.

• Control: Parties can select an arbitrator from CMMA’s panel based on their respective areas of expertise and availability. They may also be able to stipulate to other aspects of the arbitration process not normally available in litigation. This provides a degree of control not available to them if the parties decide to pursue their case through the court system.

• Efficiency and Economy: Cases in arbitration generally resolve much more quickly than those in litigation. Additionally, costs of participating in an arbitration are usually significantly lower than those associated with trial.

• Fees for arbitration depend on the arbitrator selected, the type of matter, the number of parties and other factors. We would be pleased to provide you with a fee schedule once advised of the pertinent case details.

• Flexibility: CMMA can design dispute resolution services tailored to the unique needs of the parties. 

ARBITRATION RULES: The rules followed by CMMA arbitrators are attached hereto. The parties may stipulate to items or matters related to the conduct of the hearing and those stipulations will, unless contrary to law, be accepted and followed by the Arbitrator. 

CONDUCT OF THE HEARING: The attached Arbitration Rules outline how CMMA hearings are conducted. The rules should be carefully reviewed by each party prior to agreeing to arbitrate.  If these rules appear vague in any material way, the party should request further information about the process in advance of the agreeing to arbitrate or in advance of the hearing.

MINI TRIALS: Arbitrations resemble trials and they take place in a private conference room.  Parties can be represented by counsel or can represent themselves.  Insurance claims representatives can appear on behalf of their insureds at the arbitration hearing, or they can have defense counsel appear, often depending on the value and legal complexity of the case.

STIPULATIONS. Any stipulations that can be entered into by the parties should be made prior to the commencement of the hearing.  Parties frequently present to the arbitrator a list of numbered stipulations which are facts the parties agree on and therefore, are not contested. For example, the parties may stipulate as to the authenticity of a legal document that is in issue in the case or that liability is established and the only issue submitted to the arbitrator is the extent of the plaintiff’s damages.  

OPENING STATEMENTS.  Both parties (or their counsel or representative) are given an opportunity to make a brief opening statement outlining the evidence they expect to present at the hearing.

PRESENTING THE CASE.  The claimant presents his or her case first.  The arbitrator is empowered to administer oaths to all witnesses and the witnesses generally testify under the direct examination or questioning of their counsel or representative first.  The opposing party or his counsel or representative will have the opportunity then to cross examine each witness.  At times, the arbitrator may also question the witnesses.

During the course of the arbitration, each party should seek to introduce all relevant documentary evidence they believe is relevant and material to the case and the arbitrator’s consideration. For instance, in a personal injury case, the plaintiff will usually want to submit the plaintiff’s medical bills, medical records, lost wage information, and expert reports. In other types of cases, contracts or agreements, communications, official financial statements, correspondence between the parties, maps, and other key documentary evidence may be submitted. As stated above, all submitted evidence is subject to the Arbitration Rules which are attached for the parties reference. The rules should be carefully consulted concerning admissibility of testamentary and documentary evidence so as to comply with all notice requirements well in advance of the hearing.

After the claimant submits his case, the respondent has the opportunity to present witnesses and submit documents in support of his/her case.  The claimant, or his counsel or representative, shall also have the right to cross examine any witness presented by the respondent.

OBJECTIONS.  Each party or their counsel are advised make any objections they deem warranted to evidence that their opponent seeks to admit.  The arbitrator shall rule on each objection.  Although the rules of evidence are generally more relaxed at an arbitration hearing and the arbitrator may allow into evidence certain testimony or documents that may otherwise be inadmissible at a trial. Objections, nonetheless, have value by providing the arbitrator with an understanding of the possible weaknesses in the proponents evidence.

CLOSING STATEMENTS.  After all of the evidence has been submitted by both parties, each party is generally allowed to make closing statements outlining their positions as to each of the material issues to be decided by the arbitrator.

See Mediation

Unless otherwise decided, the respondent gives their closing statement first and the claimant second. The arbitrator may impose time limits on the closing statements of each party. 

FORM OF AWARD.  Under the Massachusetts Uniform Arbitration Act, and under the terms of most written arbitration agreements, an arbitration award must be in writing and signed by the arbitrator(s).  Some arbitration awards may be sparse and not contain detailed findings of fact or rulings of law, but simply state the result, such as the amount of damages to be paid by one party to the other, i.e., “The defendant shall pay the claimant the amount of $5,000.00”.  Most arbitration awards however do contain the arbitrator’s reasoning in reaching their decision. The parties are nevertheless advised to clarify in advance with the arbitrator the type and form of award that they seek and can expect.  Some disputes are such that the parties require a reasoned award with specific findings.  The parties should clarify in advance issues such as offsets from any award, i.e., for Personal Injury Protection benefits paid, findings of comparative negligence, etc., so that the written award that is rendered makes clear the precise net amounts that may be awarded, without need for further clarification.

PUNITIVE DAMAGES.  Generally, punitive damages are not available under Massachusetts law unless authorized by a specific statute; however, an award of punitive damages by an arbitrator is not without precedent, though rare.  Parties should clearly determine and ideally agree in the written agreement whether punitive damages are an element to be submitted to the arbitrator.  Multiple damages under M.G.L. 93A and 176D can be awarded by arbitrators unless the parties agree to the contrary.

ATTORNEYS FEES.  In most cases, an arbitrator may not award attorney’s fees unless authorized to do so by statute or by the parties arbitration agreement.  Attorneys fees are expressly excluded from the relief available under the Massachusetts Uniform Arbitration Act, but, like punitive and multiple damages, these issues should ideally be discussed and agreed to by the parties in writing prior to submission to arbitration.

INTEREST. Pre-award interest is generally not available in arbitrations under Massachusetts law, unless the parties provide otherwise in their agreement.  Interest is available, however, from the date of the award.  Pre-judgment interest often plays a significant role in older cases submitted to litigation, since the Massachusetts statute presently calls for pre-judgment interest in tort cases of 12% from the date suit is initiated.  Should such an older case be submitted to arbitration, the parties should clearly indicate in the written arbitration agreement whether the arbitrator is authorized to award interest.

MOTION TO VACATE OR REVIEW ARBITRATION AWARD.  Challenges to arbitration awards are rare because the grounds for appeal are so narrow.  The grounds for vacating an award under the Massachusetts Uniform Arbitration Act (MUAA) are limited to: 1.Corruption, fraud, or undue means, 2. Evident partiality of the arbitrator or misconduct prejudicing the rights of any party, 3. Arbitrators acted in excess of their power,  4. The arbitrators refusal to postpone the hearing, upon good cause being shown, they refused to hear evidence material to the controversy, or engaged in other misconduct at the hearing, which prejudiced the parties’ rights, and 5. The absence of a written arbitration agreement, as long as the party seeking to vacate the award did not participate in the arbitration hearing without raising an objection.

The most common but least successful ground for challenging an arbitration award is that the arbitrator erred with respect to the facts or the law.  The Massachusetts Supreme Judicial Court has stated however that, “if an arbitrator has committed an error or law or fact in arriving at his decision, a court will not upset the finding unless there is fraud involved.  Even a grossly erroneous decision is binding in the absence of fraud.”

ARBITRATOR IMMUNITY.  Arbitrators enjoy the same immunity from civil liability as judges.  This immunity extends to the organizations that administer the arbitrations.  Arbitral immunity includes immunity from testifying about the reasons for the award or any other aspect of the arbitration.