Rules of the Game: A Boundary Arbitration
Professional Surveyor Magazine - March 2011
Knud Hermansen, LS, PhD, PE, Esq.
Read Part 2
Over the years I have had the pleasure to serve as a mediator, commissioner, master, referee, and arbitrator toa determine the location of disputed boundaries. The following is a story of a boundary arbitration. (It is actually derived from parts of various arbitrations; names and certain facts have been changed to protect privacy.) If you are ever a party to a boundary arbitration, learning about the process from the arbitrator’s point of view will be helpful.
The call starting the arbitration comes from an attorney (the attorney had been informed by his client’s surveyor that I offer services as an arbitrator). The attorney asks if I would be interested in arbitrating a disputed boundary involving his client. He explains that the boundary has been in litigation for five years and the parties would like to have the dispute resolved in an expedient manner (i.e., they can’t afford any more justice the usual way). After checking for a conflicting interest, I volunteered that I would be interested in serving as an arbitrator.
Further communications involve the attorneys for both parties, usually by email. Fees are discussed. I like to use a lump sum fee. I explain that this fee would be split between the parties, payable in advance. (I do not need experience to tell me that obtaining the fee after a decision is published might be problematic, especially from the losing party.) Calendars are compared and a date chosen for the arbitration.
The attorneys admit that this is the first time they have been involved in arbitration and ask what I would need and what they should do. I explain that the most important legal service they can provide their clients at this time is to agree upon the rules of arbitration. Arbitration is governed by rules established or agreed to by the parties. I provide the attorneys with a sample arbitration agreement to work from. I emphasize that the agreement is very important. It sets forth my powers and the framework for any decision.
One of the advantages of arbitration is that the arbitrator is generally chosen because he or she is an expert in the subject area. As a consequence, the attorneys need not worry that the arbitrator will become confused, bored, or lost. Arbitrators, such as myself, often ask the witnesses questions during the hearing. Contrary to a trial where the attorneys often have to argue the law to educate the court, the arbitrator selected for his or her knowledge in the subject area needs little coaching about the law or how to apply the law to the facts.
I ask the attorneys for a copy of the pleadings or a summary of their position (position paper). Receiving this information from the attorneys will allow me to be prepared for the hearing. A good position paper from the attorney succinctly summarizes their client’s position, factual information, and the claims they feel are compelling. Most are fact-based, brief summaries. Admittedly, a very few have to be some of the finest works of fiction since Gulliver’s Travels was published. These provided me with tremendous enjoyment though not much progress in eliciting the facts.
As the fee, agreement, and other documents are received, I make sure to acknowledge receipt of each item by email. I also send out a notice stating the time, location, and procedure for the hearing. For clients who have endured five years of uncertainty, the flurry of paperwork and acknowledgements provide some comfort that the dispute will soon be resolved. The steady, five-year drain on their wallets will end.
When the arbitration agreement arrives, I see that I have been retained to locate the deed boundary. I’m not sure if the parties realize the significance of the phrase “deed boundary.” The phrase is an important distinction and limitation on my powers. The limitation means that I cannot determine a boundary location based on possession or equity such as acquiescence. If I had been tasked to determine the ownership boundary rather than the deed boundary, I could have considered and decided upon a claim of adverse possession.
(This agreement is not as restrictive as a previous arbitration agreement I had to work under. In that case, the agreement limited my decision to fixing the boundary a court had already determined. The court’s decision was so poorly written the parties didn’t know who was successful. Following seven years of litigation and after waiting a year for the court’s decision, the parties agreed to let me decipher the court’s decision rather than chance waiting another year for the court to clarify its decision. Within three weeks I gave my decision and the case was finally put to rest.
I always like to view the site of the disputed boundary before the hearing, so I was pleased to read in the arbitration agreement that I was provided with the option to schedule a view. I was further pleased to read that the view was to be limited to the surveyors involved and myself. Don’t misunderstand my pleasure upon reading this portion of the agreement; I don’t mind tramping around the property with attorneys, clients, etc. (like a herd of cattle), but a view with attorneys and their clients is not the same as a view with just the surveyors. The view with attorneys and clients is much more stilted. Attorneys are often physically unprepared for the mud, brush, bugs, etc. that populate the disputed boundary location. And with clients and attorneys on the view, the surveyors are much too cautious in communicating information to me.
In this case, as most arbitration cases, I know the surveyors so communications are frank, open, and extensive. We both are free to use technical language, and they quickly point out items they will speak about later during the hearing. I’m sure my meeting relieves much of the stress the surveyors may feel about testifying at the hearing later that day.
The hearing is scheduled at the courthouse. I must admit to some reluctance about sitting on the judge’s seat (bench). Usually, I am facing the bench, either testifying or representing a client, so I feel out of place sitting on the bench (sort of like a grade school student must feel who sits at the teacher’s desk when the teacher is not around). Most arbitration hearings occur in a conference room where my position as arbitrator is not so physically elevated. However, I can appreciate the advantages of using the courtroom. Most importantly, not only will the parties feel they’ve had a fair and impartial hearing but they can claim they have had “their day in court.”
My first ruling from the bench is to direct the parties to address me by my name rather than some lofty title (e.g., “judge,” “your honor”) that would be unquestionably ill deserved on my part. My second edict is to remind everyone that they are involved in arbitration and not civil litigation, so the rules of evidence and civil procedure are not strictly followed. I don’t mind objections to testimony or evidence, but I remind the attorneys that most testimony will be allowed unless clearly irrelevant and redundant (read: boring and far-fetched). Anyone who has seen me as an arbiter can honestly say that I am attentive and thrilled to hear all the particulars of a boundary dispute. I listen with rapt attention to all testimony, regardless of the apparent credibility of the witness.
In a previous arbitration, I overruled an objection and allowed an 81-year-old witness, Zelma, to testify as to the exact location of a stone she saw once while visiting her uncle for a week when she was seven years old. Most judges and experienced attorneys understand that attentive listening is not to be misconstrued as believing. Surely, even the attorney who objected to Zelma’s testimony must admit on reflection that it was far more effective to roll his eyes behind her back where I could see his face than continuously object to her testimony. Also, the fact that on cross examination Zelma could not remember her birthday present at age seven (or any birthday present for that matter) or the name of her first husband who died 20 years ago (“I don’t remember his real name, I just called him ‘dear’”) was a poignant jab at her memory and credibility, if one was needed.
Despite my reluctance to exclude testimony, however remote to the question at hand, even I had to stop testimony once because I could see no relevancy to the location of a boundary because Hiram, a lobsterman, could stack only 100 rather than 150 lobster traps on his property 50 years ago.
Now, I don’t intend to make light of lay testimony that may seem strange. Some lay testimony can be very entertaining. For example, consider the case where I sat as a master (sometimes referred to as a referee, a master is appointed by the court to hear a case and must follow the rules of civil procedure and rules of evidence). The boundary description called for “thence to the shore in a line with Conrad Beal’s lobster boat mooring …”. There was considerable testimony where Beal’s boat was moored in 1946, the period for origination of the description. As if the position weren’t muddied enough, there appeared to be unanimous agreement from old lobstermen that the position of the mooring with a southwesterly wind on an incoming tide was 30 feet different from the mooring with a northeasterly wind on an outgoing tide. This led to considerable evidence (which I’ll call speculation to avoid slandering the term “evidence”) as to the exact date, time, and wind direction that was likely occurring when the description was prepared in 1946. I should bring to the reader’s attention that the parties were fighting between two possible locations for the boundary that was separated by a mere 10 feet.
Part two of this series provides more lessons from lay testimony as well as what happens after the hearing.
About the Author
Knud Hermansen, LS, PhD, PE, Esq.Knud is a professor in the surveying engineering technology program at the University of Maine. He provides consulting services in the areas of boundary retracement, boundary litigation, roads, easements, property title, land development, and alternative dispute resolution.
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