Most provisions in the three sets of rules are identical.  Differences are noted below.

Section 1: Applicability

Commercial Rules: business-to-business disputes

Employment Rules: disputes between employers and current or former employees

Consumer Rules: disputes between health care providers and either patients or long-term care residents.

Section 2: Filing Requirements—Contract Provisions and Fees

The Commercial Rules require the party filing the claim to pay the filing fee.

The Employment Rules require the employer to pay the filing fee if the employee asserts that agreeing to arbitrate was a condition of employment.  After paying the fee, the employer may contest this assertion and seek a refund. If an employee files a claim but does not assert that the arbitration agreement was mandatory, he or she must pay the filing fee.

The Consumer Rules set forth criteria an arbitration agreement must meet that are in keeping with regulations for long-term care facilities with Medicaid and Medicare patients. The health care provider must pay the filing fee even if the consumer initiates the claim.

Section 4: Arbitrators

The Employment Rules provide that an arbitrator must disregard any contract provision in a mandatory arbitration agreement that would unduly prejudice an employee or limit an employee’s statutory rights or remedies. The Consumer Rules contain a comparable provision to protect consumers.  

Section 5: Pre-Hearing Process—Deposits and Discovery

The Employment Rules permit an arbitrator to issue default judgment if the employer is required to pay the filing fee and/or deposits and fails to do so. The Consumer Rules contain a comparable provision should a health care provider fails to fund the costs of arbitration.

The Commercial Rules do not allow for default judgment. If one party fails to pay its fair share, the other party or parties must make up for the shortfall.  Otherwise, the arbitrator will suspend or terminate proceedings.

The Consumer Rules permit an arbitrator to order sufficient discovery for a fair hearing even if a contract provision purports to restrict such discovery. 

Section 7: Awards–Fees

The Commercial Rules incorporate the “American Rule:” Each party pays its own fees and expenses regardless of the outcome, unless the parties agree otherwise. The parties are equally responsible for the arbitrators’ fees and expenses.

The Employment Rules apportion fees in the same manner as the Commercial Rules if the agreement to arbitrate was negotiated. If this agreement was a condition of employment, the employer must pay the arbitrator’s fees and expenses. The employee is responsible for his or her legal fees and costs.

The Consumer Rules require the health care provider to pay the arbitrator’s fees and expenses for pre-hearing proceedings and at least the first three days of the hearing. Under all three sets of rules, the arbitrator can apportion fees differently if a party files a frivolous pleading, fails to cooperate in efforts to resolve the dispute, or misbehaves.

Payer-Provider Disputes

The Commercial Rules include provisions specific to payer-provider disputes which are not in the Employment or Consumer Rules (see Commercial Rules 2.1 (consolidation), 5.1 (new claims), and 5.4 (information sharing).