Rule 72. Suitability for Arbitration or a Fastar Program

(a) Decision to Require Compulsory Arbitration or a FASTAR Program

(1) Rules 72 through 77 apply if the superior court in a county, by a majority vote of the judges in that county, decides to require arbitration of certain claims and establishes jurisdictional limits by local rule under A R.S. § 12-133.

(2) Notwithstanding paragraph (1) of this Rule 72(a), if the superior court in a county, by a majority vote of the judges of that county, decides to establish a FASTAR program in that county, Rules 101 through 126 of the Rules for the Fast Trial and Alternative Resolution (“FASTAR”) Program instead of Rules 72 through 77 of these rules will apply to civil cases within the limits set forth in the FASTAR Program

(3) A decision to require arbitration of certain claims or to establish a FASTAR program must be incorporated into a superior court order that is filed with the Supreme Court clerk, with a copy filed with the clerk in that county Except when a rule is inconsistent with a specific provision in Rules 72 through 77 of these rules or the Rules for the Fast Trial and Alternative Resolution (“FASTAR”) Program, the Arizona Rules of Civil Procedure apply to all actions in arbitration and to all actions under a FASTAR program.

(b) Compulsory Arbitration

(1) Generally Civil actions, except appeals from municipal or justice courts, must be submitted to arbitration in accordance with A.R.S. § 12-133 if:

(A) No party seeks affirmative relief other than a money judgment; and

(B) No party seeks an award in excess of the jurisdictional limit for arbitration set by applicable local rule of the superior court

(2) Definitions For this rule's purposes, “award” and “affirmative relief” include punitive damages, but do not include interest, attorney's fees, or costs.

(3) Exception The court may waive the arbitration requirement if all parties stipulate to the waiver and show good cause for not arbitrating the action.

(c) Arbitration by Agreement of Reference Whether or not an action is filed, any claim may be referred to arbitration at any time by an Agreement of Reference signed by all parties or their counsel. If an action has not been filed, the Agreement of Reference must define the issues involved for determination in the arbitration proceedings and may contain stipulations with respect to agreed facts, issues, or defenses. In such instances, the Agreement of Reference takes the place of the pleadings in the action and must be filed and assigned a civil case number. Filing an Agreement of Reference does not relieve any party from paying a required filing fee. Filing of an Agreement of Reference has the same effect on the running of the statute of limitations as the filing of a civil complaint.

(d) Alternative Dispute Resolution Before a hearing is held under Rule 75, the parties or their counsel may confer regarding the feasibility of resolving their dispute through another form of alternative dispute resolution, including private mediation or binding arbitration. The court may waive the arbitration requirement if the parties file a written stipulation to participate in good faith in an alternative dispute resolution proceeding, and the court approves the method selected by the parties. The stipulation must identify the specific method selected for alternative dispute resolution.If the alternative dispute resolution method selected under this rule fails, the action will proceed under the case management rules in Rule 16 and will not be subject to compulsory arbitration.

(e) Procedure for Determining Suitability for Arbitration

(1) Certificate on Compulsory Arbitration When a complaint is filed, the plaintiff must also file with the clerk a separate certificate on compulsory arbitration in substantially the following form:

(2) Controverting Certificate If the defendant disagrees with the plaintiff's assertion as to arbitrability, the defendant must file a controverting certificate that specifies the particular reason for the defendant's disagreement. The defendant's controverting certificate must be filed with the defendant's answer and a copy must be served under Rule 5(c) on the plaintiff and all other parties who have appeared in the action.

(3) Signing and Certification The certificate and controverting certificate must be signed by the party or its counsel, and constitutes a certification by the signer that:

(A) the signer has considered the applicability of the local rules governing arbitration and Rules 72 through 77;

(B) the signer has read the certificate or controverting certificate on compulsory arbitration;

(C) after reasonable inquiry, the statements in the certificate or controverting certificate are accurate to the best of the signer's knowledge, information, and belief; and

(D) the allegation as to arbitrability is not set forth for any improper purpose.

(4) Conflicting Certificates If conflicting certificates are filed, the matter must be referred to the judge assigned to the action to decide whether the action is subject to compulsory arbitration.

(5) Amendment of Certificate A party and its counsel are under a duty to seasonably amend a prior certificate or controverting certificate on compulsory arbitration if the party or counsel obtains information that establishes that the certificate was incorrect when filed or is no longer accurate.

(6) Motions At any time after the close of the pleadings, the court may, on its own or on motion, determine that an action is subject to compulsory arbitration and may order that it proceed to arbitration as provided in these rules.

(7) Sanctions If the court, on motion or on its own, finds that a party or its counsel has made an allegation as to arbitrability that was not made in good faith or failed to seasonably amend a prior certificate on compulsory arbitration, the court may make such orders regarding such conduct as are just, including an order under Rule 11(c).