Managing Expectations: Post-Decision Inquiries

Image of a pencil with erasure marksIt was understood and accepted when intercompany arbitration was first created for and adopted by the insurance industry that errors would be made, either by Arbitration Forums, Inc. (AF) or an arbitrator. This is why the Agreements and Rules include provisions for AF to correct certain errors (i.e., clerical or jurisdictional).

Fortunately, for our membership, the number of errors has significantly declined over the years as we’ve moved from a totally paper-based process to a paper-less one. What has remained constant over the years, however, is what is not a clerical or jurisdictional error.

Disagreeing with a decision based on the belief the arbitrator misunderstood the facts or misread the evidence, or failed to comment on a specific piece of evidence, is not a correctible, clerical error. Per the various arbitration Agreements, a decision by an arbitrator is “final and binding without the right to rehearing or appeal.” This is true even if an error of fact or law were made.

Approximately, 38,000 post-decision inquiries were submitted in 2020. While that’s a significant number, it’s a low percentage when compared to the 850,000 disputes that will be resolved (4%). However, half of these inquiries will result in a final and binding response: no clerical or jurisdictional error was made.

Below are examples of clerical and jurisdictional errors:

Clerical Error – A mistake made by AF staff or the arbitrator(s). Examples of AF staff error include not providing proper notice of filing or not assigning a requested three-person panel. Arbitrator errors include mathematical errors; switching the parties when recording the liability decision; referencing the lack of or need for evidence that was, in fact, submitted; applying, on his/her own, a state regulation or statute from a state other than the loss state; or misapplying an AF Rule or procedure. It is at AF’s sole discretion to determine whether a correctible error was made.

Jurisdictional Error – Occurs when an arbitrator fails to rule on an Affirmative Defense/Exclusion; asserts an Affirmative Defense/Exclusion was not pled by a party; renders a decision on an issue not in dispute or over which arbitration lacks jurisdiction; or improperly dismisses a case for lack of jurisdiction where jurisdiction exists.

AF takes pride in providing exceptional service to our membership; however, time is valuable. Before you submit a post-decision inquiry on a decision, please make sure your concern is truly correctible. We thank you for your continued dedication to our products and services.

Article published in: January 2021 E-Bulletin