Clarifying "Missed Evidence" as a Clerical Error (Rule 4-2)
On rare occasion, the situation arises when an arbitrator expressly states that a specific evidence item "would have been helpful" or "was not submitted" when, in fact, it was properly listed as evidence and submitted by a party. In essence, the arbitrator "missed" the submitted evidence when reviewing the case.
If, at AF's discretion, the arbitrator confirms that the referenced evidence was, in fact, missed or not viewed when the case was originally heard, the arbitrator will be permitted to consider that evidence and amend the decision, if needed. This will be considered a correctible clerical error on the part of the arbitrator in accordance with Rule 4-2 (see definition below).
It is not a correctible clerical error when an arbitrator makes no reference at all to an evidence item and a party perceives it was not reviewed. Arbitrators are trained to comment only on the evidence that influenced their decision, not each evidence item.
Clerical Error — An unintentional mistake made by Arbitration Forums' staff or the arbitrator(s). Examples of AF staff error include not providing proper notice of the Materials Due Date or not assigning a requested three-person panel. Arbitrator errors include mathematical errors in applying the liability percentage against the amount of damages proven, switching the parties when recording the decision, and missing submitted evidence. It is at AF's sole discretion to determine whether a correctible error was made.
Article published in: February 2017 E-Bulletin