The 5 E's of Due Process
The Significance of Arbitration
The Code of Ethics, which every Board of REALTORS® is bound to enforce and every REALTOR® is bound to observe, requires the creation and enforcement of what amounts to a private judicial system. This system is not intended or designed to replace the federal and state judiciary. The NATIONAL ASSOCIATION OF REALTORS®, however, has gone further than any other major business or professional association in its dispute resolution effort. It has incorporated into its Code of Ethics not only the obligation to abide by the highest and best standards of professional performance and responsibility but also the obligation to arbitrate, as opposed to litigate disputes with fellow REALTORS® and with the public. The ethics proceeding may arise from the same facts that give rise to arbitration but involve the vindication of an entirely different set of interests; in the case of arbitration, the interests of the parties to the transaction in dispute; in the case of ethics, the interests of the Association in the protection of the public trust, confidence, and reliance that it has placed in REALTORS®.
The courts look to the five elements, which, over the centuries of judicial experience, have come to be recognized as the sine qua non of “due process.”
- Equality. The system must not discriminate procedurally between parties. If one party is entitled to counsel, then all are entitled. If notice is provided for one, it must be provided for all. The essential requirement for Equality is that the system provides a “level playing field" for the disputants. Discrimination in appearance or fact is an anathema to the Equality required to satisfy due process.
- Economy. The cost of access to the system must not be a barrier to its use or operate to the disadvantage of one or the other parties. This means that grievance and arbitration proceedings should not be made a Board profit center and, in fact, may have to become subsidized to assure open access.
- Expedition. As “justice delayed is frequently justice denied,” there is an affirmative obligation on the part of the system to expedite ethics and arbitration proceedings. This does not foreclose orderly procedure with adequate time to ensure notice, time to prepare, opportunity to identify and gather witnesses, and otherwise develop facts and arguments. It does, however, foreclose dilatory tactics, unreasonable extension of time, and protraction of hearings.
- Evidence. The system must be designed and function to elicit evidence, not assumptions; proof, not presumptions. While strict rules of evidence in the judicial sense do not apply, there must be control of what is admitted as relevant and judgment as to what is mere speculation and hearsay designed to prejudice rather than inform.
- Equity. The system must produce decisions that reflect a sense and substance of “rightness” and “reasonableness.” In matters involving unethical conduct, the punishment should fit the offense. The judgment should reflect consideration of extenuating circumstances and a balance of competing values and objectives. Moreover, the predictability, consistency, and uniformity of the system’s performance is an important measure of Equity.
Every Board may expect every decision it renders as a result of a grievance or arbitration proceeding to be evaluated by the Courts under the five E’s – Equality, Economy, Expedition, Evidence, and Equity – to determine if it satisfies due process. The Board has no power or capacity to constitute itself a “court of last resort.” But, if a Board can satisfy a court that its decision has satisfied the five E’s, the court will let the decision on the merits stand.
Filing an Ethics Complaint
REALTORS® are different from non-member licensees in that they voluntarily subscribe to a strict Code of Ethics. If you believe that a REALTOR® affiliated with the High Country Association of REALTORS® has violated one or more Articles of the Code of Ethics, you can file an ethics complaint alleging a violation(s) by submitting the form below.
Before filing a complaint, please review this brochure provided by the National Association of REALTORS®, which offers information about the process.