MODEL RULES FOR FEE ARBITRATION - RULE 7

Rule 7 EFFECT OF DECISION; ENFORCEMENT

  1. Compliance with Decision.

    (1) Where the parties have agreed to be bound by the arbitration or have settled the dispute, the parties shall have [thirty] days from service of the written decision or the date the stipulation of settlement is signed by the parties to comply with the decision or settlement.
    (2) Where there is no agreement to be bound by the arbitration, any party is entitled to a trial de novo if sought within thirty days from service of the written decision, except that if a party willfully fails to appear at the arbitration hearing, that party shall not be entitled to a trial de novo. The determination of willfulness shall be made by the court. The party who failed to appear at the arbitration shall have the burden of proving that the failure to appear was not willful. In making its determination, the court may consider any findings made by the arbitrators on the subject of a party's failure to appear. If a trial de novo is not sought within 30 days, the decision becomes binding.

  2. Trial De Novo.

    (1) If there is an action pending, the trial de novo shall be initiated by filing a rejection of arbitration award and request for trial in that action within 30 days from service of the written decision.
    (2) If no action is pending, the trial de novo shall be initiated by the commencement of an action in the court having jurisdiction over the amount in controversy within thirty days from the service of the written decision.
    (3) The party seeking a trial de novo shall be the prevailing party if that party obtains a judgment more favorable than that provided by the arbitration award, and in all other cases the other party shall be the prevailing party. The prevailing party may, in the discretion of the court, be entitled to an allowance for reasonable attorney's fees and costs incurred in the trial de novo, which allowance shall be fixed by the court. In fixing the attorney's fees, the court shall consider the decision and determinations of the arbitrators, in addition to any other relevant evidence.
    (4) Except as provided in this rule, the decision and determinations of the arbitrators shall not be admissible in any action or proceeding and shall not operate as collateral estoppel or res judicata.

  3. Petition to Confirm, Correct, or Vacate the Decision.

    (1) If a civil action has been stayed pursuant to these rules, any petition to confirm, correct, or vacate the decision shall be filed with the court in which the action is pending, and shall be served in accordance with the [jurisdiction's statutes or rules of civil procedure].
    (2) If no action is pending in any court, the decision may be confirmed, corrected, or vacated by petition to the court having jurisdiction over the amount of the decision, in accordance with the [jurisdiction's statutes or rules of civil procedure].
    (3) A court confirming, correcting or vacating a decision under these rules may award to the prevailing party reasonable fees and costs including, if applicable, fees or costs on appeal, incurred in obtaining confirmation, correction or vacation of the award. The party obtaining judgment confirming, correcting, or vacating the decision shall be the prevailing party except that, without regard or consideration of who the prevailing party may be, if a party did not appear at the arbitration hearing in the matter provided by these rules, that party shall not be entitled to attorney's fees or costs upon confirmation, correction, or vacation of the award.

Comment
Thirty days is considered a reasonable time period in which to expect the parties to comply with the decision. The thirty days begins to run when the decision in the fee arbitration process is served on the parties or when a settlement agreement is signed.

The Commission itself has no authority to enforce a decision. Either party may use the summary action mechanisms which are provided by the jurisdiction to obtain a judgment consistent with the panel's decision as expeditiously as possible.

Reasonable fees and costs may be awarded to the prevailing party in an action to confirm, correct or vacate a panel decision, unless the prevailing party failed to appear at the arbitration hearing in the manner provided in the rules. This exception should encourage full participation of the parties in the arbitration proceeding.

Every jurisdiction is encouraged to consider developing means of assisting clients in enforcing decisions. Some jurisdictions use a panel of pro bono lawyers to assist the clients in obtaining civil judgements. Some jurisdictions refer lawyers who fail to comply with a decision or judgement to an appropriate agency for administrative, non-disciplinary action such as that used in the jurisdiction for failure to comply with mandatory continuing legal education requirements or failure to pay registration fees.

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