III. Effects Of ADR Committee Decision
15. The ADR Committee shall hold a hearing on any unresolved Complaint within thirty (30) days after receipt of written notice of (i) any decision, other than an aggrieved party's default, not to proceed to mediation or (ii) the unsuccessful conclusion of mediation proceedings, whichever first occurs. In such event, all parties shall be given at least (10) days prior written notice of the right to be heard, with or without counsel, and the right to cross-examine witnesses with respect to the violations alleged in the Complaint. At the conclusion of the hearing, the ADR Committee shall have the right to either dismiss the charges or to impose the sanctions or remedies contemplated by Paragraph 24 of this Resolution. If the Dispute is ultimately heard and a decision is rendered by the ADR Committee ("Decision") pursuant to the Condominium Documents, the Decision shall be binding upon all parties unless an aggrieved party, other than the Association, initiates binding arbitration procedures or litigation within forty-five (45) days, if applicable, after receipt of written notice of the Decision. Moreover, the decision may not be appealed to the Board. If no such proceedings or litigation are formally commenced within such forty-five (45) day period, then a party may only seek judicial review of the Decision upon the grounds that it was obtained through fraud, corruption or misconduct or in contradiction of the Condominium Documents or New Jersey law.
16. If the Dispute is referred on a timely basis to binding arbitration after the ADR Committee renders a Decision, it shall be heard by a sole arbitrator acceptable to the parties who is certified by the Association and selected from a panel of 3 names supplied by the AAA. If they are unable to agree upon one of the persons or someone else to act as the AAA shall select arbitrator within the time limit imposed by the AAA, then the arbitrator. Referral of a Dispute to arbitration shall be by a party aggrieved by the Decision other than the Association. The arbitrator shall decide any issue as to whether or the extent to which the Dispute is subject to arbitration.
17. A formal arbitration proceeding shall be commenced upon the filing with the AAA of a Notice of Intent to Arbitrate (the "Arbitration Notice"). The form of Arbitration Notice shall be provided by the AAA. The Arbitration Notice shall contain a brief statement generally setting forth the source and nature of the Dispute, and shall be accompanied by the filing fee required by the AAA. By such submission of the Arbitration Notice, the aggrieved party acknowledges and confirms his intent to abandon his right to have the Dispute decided in court by a judge or jury.
18. The arbitration shall be conducted in accordance with the applicable Rules of the "AAA" then in effect, and as may by modified by this Resolution or by the arbitrator. The arbitration shall be governed by the substantive law of the State of New Jersey, and the judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
19. Within twenty (20) days after the appointment of an arbitrator, a preliminary hearing among the arbitrator, the parties and counsel for the parties, if represented, shall be held for the purpose of developing a plan for the management of the arbitration, which shall be memorialized in an appropriate order. The matters which may be addressed at the preliminary hearing include, without limitation, (a) definitions of issues; (b) scope, timing and types of discovery, if any; (c) schedule and place of hearings; (d) setting of other timetables; (e) submission of briefs; (f) whether, and to what extent, expert testimony will be required, whether the arbitrator should engage one or more neutral experts, and whether engagement of experts by the parties can be obviated or minimized; (g) whether, and the what extent, the direct testimony of witnesses will be received by affidavit; and (h) any other matters which would promote the efficient, expeditions and cost effective conduct of the proceeding. This preliminary hearing or order may be waived if the arbitrator deems it appropriate under the circumstances.
20. Requests for discovery shall be submitted to the arbitrator not less than ten (10) days prior to the preliminary hearing. Each party shall provide the other with copies of documents relevant to the issues raised by any claim or counterclaim. The arbitrator shall permit such relevant discovery as he/she shall determine is appropriate under the circumstances, taking into account the needs of the parties and the desirability of making discovery expeditious and cost effective. Such discovery may include production of requested documents and depositions, particularly of witnesses who will not appear personally before the arbitrator to testify, if there is a substantial, demonstrated need therefore. All discovery shall be completed within fifteen (15) days after the preliminary hearing unless extended by the arbitrator.
21. There shall be no dispositive motion practice. The arbitrator shall not be bound by the rules of evidence or of civil procedure, but may consider such writings and oral presentations as deemed reasonable by the arbitrator.
22. Any provisional remedy available from a court of law shall be available from the arbitrator to the parties pending final resolution of the Dispute. In the event a party deems it necessary to prevent irreparable harm from an alleged violation, such party may make an application to the arbitrator seeking preliminary injunctive relief to maintain the status quo or safeguard the property that is the subject of the Dispute until the arbitration award is rendered or the Dispute is other wise resolved. If the arbitrator issues an injunction, the same may be enforced in the manner as any final award of the arbitrator.
23. A hearing on the Dispute shall be held within twenty (20) days of the preliminary hearing and shall be concluded with five (5) hearing days, which need not be consecutive. The time limits are included to expedite the proceeding, but are not jurisdictional. The arbitrator, for good cause, may allow reasonable extensions or delays, which shall not affect the validity of the award. The hearing may be held at any place within County of Hudson, State of New Jersey designated by the arbitrator. Each party shall attend the hearing.
24. The arbitrator shall, within thirty (30) days of the conclusion of the hearing, determine the claims of the parties and render a final award, in writing. The arbitrator may, but is not required to, provide a concise statement of the general basis for his/her conclusions. The award may be converted to a judgment and enforced in any court having jurisdiction to do so. The arbitration award may include (but is not limited to) the following remedies:
- (a) Cease and Desist Order. The arbitrator may issue a cease and desist order against a party prohibiting them from undertaking any action relating to the Dispute.
- (b) Injunctive Relief or Specific Performance. The arbitrator may issue an injunction or order specific performance of any obligation created under the Condominium Documents.
- (c) Suspension of Privileges. Disciplinary action imposed by the arbitrator may include suspending or conditioning the party's privileges to use the Association common elements and facilities. For any non-continuing infraction, such suspension shall be for a period of not more than thirty (30) days. For a continuing infraction, suspension may be imposed for so long as the violation continues.
- (d) Award of Damages. The arbitrator may assess damages, if any, against a party. The amount of damages to be assessed shall be determined according to the proofs in each case. For any violation, the damages to be assessed shall at least be such an amount as is required to compensate the opposing party or the Association for actual damages incurred. In no event shall the amount of damages assessed exceed the actual damages incurred by the opposing party or the Association. The arbitrator shall have no authority to award punitive damages or other damages not measured by the prevailing party's actual damages.
- (e) Fines and Other Remedies. The arbitrator shall also have the right to impose fines to the extent permitted under the Condominium Documents and by law.
25. Within thirty (30) days after delivery of an award to the parties, the arbitrator may make corrections on his/her own initiative, and corrections requested by a party, provided all such corrections are made in writing.
26. The arbitrator shall base his/her award on the provisions of the applicable Condominium Documents, and shall endeavor to follow the law and judicial precedent which a New Jersey Superior Court Judge sitting in Hudson County would apply in the event the Dispute were litigated in such Court. The arbitrator shall have no power or authority to render any judgment or award that is in contravention of the Condominium Documents or is clearly erroneous in its application of substantive law, and any such judgment or award shall not be eligible for confirmation.
27. The arbitrator may award all or a part of a party's reasonable attorney's fees and costs associated with the arbitration, including the filing fee, taking into account the final result of the arbitration proceeding, the conduct of the parties and their counsel in the course of the arbitration and other relevant factors. The arbitrator shall, in the final award, assess the amount of the costs of the proceedings. However, in the absence of a specific award, all arbitration costs, including the arbitrator's fees, if any, shall be shared equally by the parties to the Dispute. Should the escrow deposit be insufficient for this purpose, the parties shall deposit in advance an additional sum with the Escrow Agent in an amount sufficient to cover the additional costs of the arbitration.
28. Within forty-five (45) days after receipt of the award any aggrieved party may seek judicial review of the arbitration award solely and exclusively upon the grounds that it was obtained through fraud, corruption or misconduct, or in the event that the arbitrator's award is in direct contravention of the Condominium Documents or clearly erroneous in its application of New Jersey substantive law.
Any suit, action or proceeding, whether at law or in equity and including any declaratory judgment or similar suit or action constituting or pertaining to such judicial review, shall be instituted in the Superior Court of the State of New Jersey. If any award is reviewed, the prevailing party shall be entitled to recover from the non-prevailing party all costs and reasonable attorney's fees incurred in the review proceedings.
29. If judicial review is not commenced within forty-five (45) days after transmittal of the award, the arbitration award shall be deemed binding upon all of the parties. Thereafter, such award may be converted to a judgment and enforced in any court having jurisdiction to do so.
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