This statute is set forth for the benefit
of non-lawyers participating in court-annexed arbitrations.
The
procedure of Oregon Court Annexed
Arbitration is governed by Oregon Revised Statutes sections 36.400
to 36.425, along with rules issued by the Supreme Court of Oregon in
chapter 13 of the Uniform Trial Court Rules. Many Circuit Courts
have also issued additional rules, usually found at chapter 13 of that
court's Supplemental Local Rules. The
Uniform Trial Court Rules
and each
Circuit
Court's Supplemental Local Rules are found on the website of the
Oregon Supreme Court - also known as the Oregon Judicial Department (
www.ojd.state.or.us) - under the
button
RULES. It is not realistically possible for a non-lawyer
to participate in a court-annexed arbitration without at least having
read - and attempted to follow - these statutes and chapter 13 of the UTCR
(as they are known) and chapter 13 of the SLR.
Here are the statutes (but not the UTCR
and the SLR). For non-lawyers, do not confuse these procedural
statutes and rules with the
substantive rules of law governing
entitlement to recover, damages, evidence, and other procedures of courts.
36.400 Mandatory arbitration programs.
(1) A mandatory arbitration program is
established in each circuit court.
(2) Rules consistent with ORS 36.400 to
36.425 to govern the operation and procedure of an arbitration program
established under this section may be made in the same manner as other
rules applicable to the court and are subject to the approval of the
Chief Justice of the Supreme Court.
(3) Each circuit court shall require arbitration
under ORS 36.400 to 36.425 in matters involving $50,000 or less.
(4) ORS 36.400 to 36.425 do not apply
to appeals from a county, justice or municipal court or actions in
the small claims department of a circuit court. Actions transferred
from the small claims department of a circuit court by reason of a
request for a jury trial under ORS 46.455, by reason of the filing
of a counterclaim in excess of the jurisdiction of the small claims department
under ORS 46.461, or for any other reason, shall be subject to ORS 36.400
to 36.425 to the same extent and subject to the same conditions as a case
initially filed in circuit court. The arbitrator shall not allow any
party to appear or participate in the arbitration proceeding after the
transfer unless the party pays the arbitrator fee established by court
rule or the party obtains a waiver or deferral of the fee from the court
and provides a copy of the waiver or deferral to the arbitrator. The failure
of a party to appear or participate in the arbitration proceeding by
reason of failing to pay the arbitrator fee or obtain a waiver or deferral
of the fee does not affect the ability of the party to appeal the arbitrator’s
decision and award in the manner provided by ORS 36.425.
36.405 Referral to mandatory arbitration; exemptions.
(1) Except as provided in ORS 30.136, in a civil action in
a circuit court where all parties have appeared, the court shall refer the
action to arbitration under ORS 36.400 to 36.425 if either of the following
applies:
(a) The only relief claimed is recovery of
money or damages, and no party asserts a claim for money or general and special
damages in an amount exceeding $50,000, exclusive of attorney fees, costs
and disbursements and interest on judgment.
(b) The action is a domestic relations suit,
as defined in ORS 107.510, in which the only contested issue is the division
or other disposition of property between the parties.
(2) The presiding judge for a judicial district may do
either of the following:
(a) Exempt from arbitration under ORS 36.400
to 36.425 a civil action that otherwise would be referred to arbitration
under this section.
(b) Remove from further arbitration proceedings
a civil action that has been referred to arbitration under this section,
when, in the opinion of the judge, good cause exists for that exemption or
removal.
(3) If a court has established a mediation program that
is available for a civil action that would otherwise be subject to arbitration
under ORS 36.400 to 36.425, the court shall not assign the proceeding to
arbitration if the proceeding is assigned to mediation pursuant to the agreement
of the parties. Notwithstanding any other provision of ORS 36.400 to 36.425,
a party who completes a mediation program offered by a court shall not be
required to participate in arbitration under ORS 36.400 to 36.425.
36.410 Stipulation for arbitration; conditions; relief.
(1) In a civil action in a circuit court
where all parties have appeared and agreed to arbitration by stipulation,
the court shall refer the action to arbitration under ORS 36.400 to
36.425 if: (a) The relief claimed is more than or other than recovery
of money or damages. (b) The only relief claimed is recovery of
money or damages and a party asserts a claim for money or general and
special damages in an amount exceeding $50,000, exclusive of attorney
fees, costs and disbursements and interest on judgment. (2) If
a civil action is referred to arbitration under this section, the arbitrator
may grant any relief that could have been granted if the action were determined
by a judge of the court.
36.415 Arbitration after waiver of amount of claim exceeding
$50,000; motion for referral to arbitration.
(1) In a civil action in a circuit court
where all parties have appeared, where the only relief claimed is recovery
of money or damages, where a party asserts a claim for money or general
and special damages in an amount exceeding $50,000, exclusive of attorney
fees, costs and disbursements and interest on judgment, and where all
parties asserting those claims waive the amounts of those claims that
exceed $50,000, the court shall refer the action to arbitration under
ORS 36.400 to 36.425. A waiver of an amount of a claim under this section
shall be for the purpose of arbitration under ORS 36.400 to 36.425 only
and shall not restrict assertion of a larger claim in a trial de novo
under ORS 36.425.
(2) In a civil action in a circuit court
where all parties have appeared, where the only relief claimed is recovery
of money or damages and where a party asserts a claim for money or
general and special damages in an amount exceeding $50,000, exclusive
of attorney fees, costs and disbursements and interest on judgment,
any party against whom the claim is made may file a motion with the
court requesting that the matter be referred to arbitration. After
hearing upon the motion, the court shall refer the matter to arbitration
under ORS 36.400 to 36.425 if the defendant establishes by affidavits
and other documentation that no objectively reasonable juror could
return a verdict in favor of the claimant in excess of $50,000, exclusive
of attorney fees, costs and disbursements and interest on judgment.
36.420 Notice of arbitration hearing; open proceeding;
compensation and expenses.
(1) At least five days before the date
set for an arbitration hearing, the arbitrator shall notify the clerk
of the court of the time and place of the hearing. The clerk shall post
a notice of the time and place of the hearing in a conspicuous place for
trial notices at the principal location for the sitting of the court in
the county in which the action was commenced.
(2) The arbitration proceeding and the
records thereof shall be open to the public to the same extent as would
a trial of the action in the court and the records thereof.
(3) The compensation of the arbitrator
and other expenses of the arbitration proceeding shall be the obligation
of the parties or any of them as provided by rules made under ORS 36.400.
However, if those rules require the parties or any of them to pay any
of those expenses in advance, in the form of fees or otherwise, as a
condition of arbitration, the rules shall also provide for the waiver
in whole or in part, deferral in whole or in part, or both, of that payment
by a party whom the court finds is then unable to pay all or any part of
those advance expenses. Expenses so waived shall be paid by the state from
funds available for the purpose. Expenses so deferred shall be paid, if
necessary, by the state from funds available for the purpose, and the state
shall be reimbursed according to the terms of the deferral.
36.425 Filing of decision and award; notice of appeal;
trial de novo; attorney fees and costs; effect of arbitration decision
and award.
(1) At the conclusion of arbitration under
ORS 36.400 to 36.425 of a civil action, the arbitrator shall file the
decision and award with the clerk of the court that referred the action
to arbitration, together with proof of service of a copy of the decision
and award upon each party. If the decision and award require the payment
of money, including payment of costs or attorney fees, the decision
and award must be substantially in the form prescribed by ORS 18.042.
(2)(a) Within 20 days after the filing
of a decision and award with the clerk of the court under subsection
(1) of this section, a party against whom relief is granted by the decision
and award or a party whose claim for relief was greater than the relief
granted to the party by the decision and award, but no other party, may
file with the clerk a written notice of appeal and request for a trial
de novo of the action in the court on all issues of law and fact. A copy
of the notice of appeal and request for a trial de novo must be served on
all other parties to the proceeding. After the filing of the written notice
a trial de novo of the action shall be held. If the action is triable by
right to a jury and a jury is demanded by a party having the right of trial
by jury, the trial de novo shall include a jury.
(b) If a party files
a written notice under paragraph (a) of this subsection, a trial
fee or jury trial fee, as applicable, shall be collected as provided
in ORS 21.270.
(c) A party filing
a written notice under paragraph (a) of this subsection shall deposit
with the clerk of the court the sum of $150. If the position under
the arbitration decision and award of the party filing the written
notice is not improved as a result of a judgment in the action on the
trial de novo, the clerk shall dispose of the sum deposited in the
same manner as a fee collected by the clerk. If the position of the
party is improved as a result of a judgment, the clerk shall return
the sum deposited to the party. If the court finds that the party filing
the written notice is then unable to pay all or any part of the sum to
be deposited, the court may waive in whole or in part, defer in whole
or in part, or both, the sum. If the sum or any part thereof is so deferred
and the position of the party is not improved as a result of a judgment,
the deferred amount shall be paid by the party according to the terms of
the deferral.
(3) If a written notice is not filed under
subsection (2)(a) of this section within the 20 days prescribed, the
court shall cause to be prepared and entered a judgment based on the
arbitration decision and award. A judgment entered under this subsection
may not be appealed.
(4) Notwithstanding any other provision
of law or the Oregon Rules of Civil Procedure:
(a) If a party requests
a trial de novo under the provisions of this section, the action is
subject to arbitration under the provisions of ORS 36.405 (1)(a), the
party is entitled to attorney fees by law or contract, and the position
of the party is not improved after judgment on the trial de novo, the
party shall not be entitled to an award of attorney fees or costs and disbursements
incurred by the party before the filing of the decision and award of the
arbitrator, and shall be taxed the reasonable attorney fees and costs and
disbursements incurred by the other parties to the action on the trial de
novo after the filing of the decision and award of the arbitrator.
(b) If a party requests
a trial de novo under the provisions of this section, the action is
subject to arbitration under ORS 36.405 (1)(a), the party is not entitled
to attorney fees by law or contract, and the position of the party is
not improved after judgment on the trial de novo, pursuant to subsection
(5) of this section the party shall be taxed the reasonable attorney fees
and costs and disbursements of the other parties to the action on the
trial de novo incurred by the other parties after the filing of the decision
and award of the arbitrator.
(c) If a party requests
a trial de novo under the provisions of this section, the action is
subject to arbitration under ORS 36.405 (1)(b), and the position of the
party is not improved after judgment on the trial de novo, the party shall
not be entitled to an award of attorney fees or costs and disbursements
and shall be taxed the costs and disbursements incurred by the other parties
after the filing of the decision and award of the arbitrator.
(5) If a party is entitled to an award
of attorney fees under subsection (4) of this section, but is also entitled
to an award of attorney fees under contract or another provision of
law, the court shall award reasonable attorney fees pursuant to the contract
or other provision of law. If a party is entitled to an award of attorney
fees solely by reason of subsection (4) of this section, the court shall
award reasonable attorney fees not to exceed the following amounts:
(a) Twenty percent
of the judgment, if the defendant requests the trial de novo but the
position of the defendant is not improved after the trial de novo;
or
(b) Ten percent of
the amount claimed in the complaint, if the plaintiff requests the
trial de novo but the position of the plaintiff is not improved after
the trial de novo.
(6) Within seven days after the filing
of a decision and award under subsection (1) of this section, a party
may file with the court and serve on the other parties to the arbitration
written exceptions directed solely to the award or denial of attorney
fees or costs. Exceptions under this subsection may be directed to the
legal grounds for an award or denial of attorney fees or costs, or to
the amount of the award. Any party opposing the exceptions must file a
written response with the court and serve a copy of the response on the
party filing the exceptions. Filing and service of the response must be
made within seven days after the service of the exceptions on the responding
party. A judge of the court shall decide the issue and enter a decision
on the award of attorney fees and costs. If the judge fails to enter a decision
on the award within 20 days after the filing of the exceptions, the award
of attorney fees and costs shall be considered affirmed. The filing of
exceptions under this subsection does not constitute an appeal under subsection
(2) of this section and does not affect the finality of the award in any
way other than as specifically provided in this subsection.
(7) For the purpose of determining whether
the position of a party has improved after a trial de novo under the
provisions of this section, the court shall not consider any money
award or other relief granted on claims asserted by amendments to the
pleadings made after the filing of the decision and award of the arbitrator.