Mediation of Ethics
Mediation, sometimes called Settlement, is an optional step in the Ethics complaint process. It is a much less formal process than an Ethics hearing. The objectives of Mediation are to resolve controversies by promoting friendly, amicable resolutions; enhancing the continued business relationship of the parties, and educating the parties as to the obligations under the Code of Ethics.
Participation in Mediation is voluntary on the part of each party. Consider the benefits of Mediation by reviewing the What is a Mediation Conference summary. If you are willing to mediate the dispute, indicate so on the Ethics Complaint Form and/or the Mediation Request Form (Ethics) along with your complaint, and the Professional Standards Administrator will inquire of the other party as to whether they would be willing to participate in Mediation. If all parties agree, the matter will be referred to a Mediation Officer. A mutually convenient time and location for the Mediation will be arranged with the parties.
The Mediation Officer has no authoritative decision-making power. The role of the Mediation Officer is to assist the parties in voluntarily reaching their own mutually acceptable settlement of the issues in dispute.
In the event the parties reach a mutually agreeable resolution, a written agreement shall be prepared by the Mediation Officer and signed by the parties. In the event the Mediation is unsuccessful, the matter will be reviewed by the Review Panel for consideration as to whether it should proceed to an Ethics Hearing.
Your complaint is first reviewed by the Professional Standards Administrator, a member of the RANW staff, who is also available throughout the process to assist you. The Administrator will refer your complaint to a Review Panel made up of three members of the Association's Professional Standards Committee, who will review your written complaint. Based on an assumption that your complaint is true, the Panel will determine if the allegations could possibly constitute a violation of the Code of Ethics and therefore warrant further consideration by a Hearing Panel. The Review Panel does not determine guilt or innocence. After reviewing your complaint, the Review Panel has several options. They can:
1. Forward the case for a hearing if the facts alleged, taken as true, could constitute a violation of the Code;
2. Dismiss it, if the complaint is determined to be frivolous, harassing or unfounded (i.e., the facts alleged, even if true, do not constitute a violation of the code), or it was not filed timely, etc.
3. Suspend it if the same matter is going before the courts or regulatory enforcement agency;
4. Postpone their decision to get more information, to request an amendment, or to determine that the case may be more appropriately considered for Arbitration rather than Ethics.
If the Review Committee dismisses your complaint, it does not mean they don't believe you. Rather, it means that they do not feel that your allegations would support a hearing panel's conclusion that the Article(s) cited in your complaint were violated, or that the complaint wasn't filed in compliance with required procedures. If the Panel dismisses your complaint, you have the right to appeal the dismissal to the RANW Board of Directors. In the case of an appeal, the Directors review only the materials submitted to the Review Panel. The Directors can then either uphold or overturn the Review Panel's decision. If the complaint merits further consideration, it will be sent to an Ethics Hearing Panel for a hearing.
By the same token, if the Review Committee forwards your complaint for hearing, that does not mean they have decided the Code of Ethics has been violated. Rather, it means they feel that if what you allege in your complaint is found to have occurred by the hearing panel, that panel may have reason to find that a violation of the Code of Ethics occurred.
If a Review Panel refers your Ethics complaint to a hearing, you will be notified of the hearing date, time and place. The Association will also give you instructions about hearing procedures prior to the hearing.
An Ethics hearing provides an opportunity for the Complainant and the Respondent to explain "his or her side of the story" by presenting testimony, evidence and witnesses, if any. Once all the facts have been presented, an Ethics Hearing Panel, consisting of 3 or 5 members of the Professional Standards Committee, will determine whether the Code of Ethics has been violated. If a panel determines that the Code has been violated, it can recommend to the Board of Directors that disciplinary action be taken. The Association can use one or more of the following ways to discipline a member:
- Letter of Warning with a copy to be placed in the member's file for a specified period of time;
- Letter of Reprimand with a copy to be placed in the member's file for a specified period of time;
- Requirement that the member attend the Ethics portion of the Association Indoctrination Course or other appropriate course or seminar specified by the Hearing Panel which the member could reasonably attend taking into consideration cost, location and duration;
- Appropriate and reasonable fine not to exceed $5,000;
- Member placed on probation for a stated period of time not less than thirty (30) days nor more than one (1) year;
- Membership suspended for a stated period of time not less than thirty (30) days nor more than one (1) year, with automatic reinstatement of membership in good standing at the end of the specified period of suspension;
- Expulsion from membership with no reinstatement privilege for a specified period of one (1) to three (3) years, with reinstatement of membership to be by application only after the specified period of expulsion, on the merits of the application at the time received;
- Suspension or termination of MLS rights and privileges may also be utilized. Suspension of MLS services may be no less than thirty (30) days nor more than one (1) year; termination of MLS services shall be for a stated period of one (1) to three (3) years;
- An administrative processing fee of $250 may be assessed against Respondents found in violation of the Code of Ethics. This fee is in addition to and not part of any sanction that may be imposed.
- At the option of the Board of Directors, an assessment in lieu of suspension, with the assessment not to exceed $2,500 may be offered. This option may be utilized only once in any three-year period.
- An Ethics proceeding may not award monetary damages.
The Association will inform you about each step of this process as it occurs, and the Administrator is available to answer your questions. If you have questions relating to filing an Ethics complaint, please call the REALTORS® Association of Northeast Wisconsin at 920.739.9108.
Preparing for the hearing
- Familiarize yourself with the hearing procedures that will be followed. In particular you will want to know about challenging potential panel members, your right to counsel (a REALTOR and/or attorney), calling witnesses, and the burdens and standards of proof that apply.
- Complainants have the ultimate responsibility ("burden") of proving that the Code of Ethics has been violated. The standard of proof that must be met is "clear, strong and convincing" defined as ". . . that measure or degree of proof which will produce a firm belief or conviction as to the allegations sought to be established." Consistent with American jurisprudence, respondents are considered innocent unless proven to have violated the Code of Ethics.
- Be sure that your witnesses and counsel will be available on the day of the hearing. Continuances are a privilege - not a right.
- Be sure you have all the documents and other evidence you need to present your case.
- Organize your presentation in advance. Know what you are going to say and be prepared to demonstrate what happened and how you believe the Code of Ethics was violated.
At the hearing
- Appreciate that panel members are unpaid volunteers giving their time as an act of public service. Their objective is to be fair, unbiased, and impartial; to determine, based on the evidence and testimony presented to them, what actually occurred; and then to determine whether the facts as they find them support a finding that the Article(s) charged have been violated.
- Hearing panels cannot conclude that an Article of the Code has been violated unless that Article(s) is specifically cited in the complaint.
- Keep your presentation concise, factual, and to the point. Your task is to demonstrate what happened (or what should have happened but didn't), and how the facts support a violation of the Article(s) charged in the complaint.
- Hearing panels base their decisions on the evidence and testimony presented during the hearing. If you have information relevant to the issue(s) under consideration, be sure to bring it up during your presentation.
- Recognize that different people can witness the same event and have differing recollections about what they saw. The fact that a respondent or their witness recalls things differently doesn't mean they aren't telling the truth as they recall events. It is up to the hearing panel, in the findings of fact that will be part of their decision, to determine what actually happened.
- The hearing panel will pay careful attention to what you say and how you say it. An implausible account doesn't become more believable through repetition or, through volume.
- Many violations of the Code of Ethics result from misunderstanding or lack of awareness of ethical duties by otherwise well-meaning, responsible real estate professionals. An Ethics complaint has potential to be viewed as an attack on a respondent's integrity and professionalism. For the enforcement process to function properly, it is imperative for all parties, witnesses, and panel members to maintain appropriate decorum.
After the hearing
- When you receive the hearing panel's decision, review it carefully.
- Findings of fact are the conclusions of impartial panel members based on their reasoned assessment of all of the evidence and testimony presented during the hearing. Findings of fact are not appealable.
- If you believe the hearing process was seriously flawed to the extent you were denied a full and fair hearing, there are appellate procedures that can be involved. The fact that a hearing panel found no violation is not appealable.
- For detailed information on the bases and time limits for appealing decisions or requesting a rehearing, contact the Association. Rehearings are generally granted only when newly discovered evidence comes to light (a) which could not reasonably have been discovered and produced at the original hearing and (b) which might have had a bearing on the hearing panel's decision. Appeals brought by Ethics respondents must be based on (a) a perceived misapplication or misinterpretation of one or more Articles of the Code of Ethics, (b) a procedural deficiency or failure of due process, or (c) the nature or gravity of the discipline proposed by the hearing panel. Appeals brought by Ethics complainants are limited to procedural deficiencies or failures of due process that may have prevented a full and fair hearing.
Many Ethics complaints result from misunderstanding or a failure in communication. Before filing an Ethics complaint, make reasonable efforts to communicate with your real estate professional or a principal broker in the firm. If these efforts are not fruitful, the forms for filing a complaint are available at the end of this section, or through the REALTORS® Association.