US Laws, Codes, Statutes & Cases

Chapter 36 — Mediation and Arbitration

 

2007 EDITION

 

MEDIATION AND ARBITRATION

 

SPECIAL ACTIONS AND PROCEEDINGS

 

DISPUTE RESOLUTION

 

(Generally)

 

36.100       Policy for ORS 36.100 to 36.238

 

36.105       Declaration of purpose of ORS 36.100 to 36.238

 

36.110       Definitions for ORS 36.100 to 36.238

 

(Dispute Resolution Programs)

 

36.135       Review of dispute resolution programs; suspension or termination of funding

 

36.145       Dispute Resolution Account

 

36.150       Additional funding

 

36.155       Grants for dispute resolution services in counties; rules

 

36.160       Participation by counties; notice; contents; effect of failure to give notice

 

36.165       Termination of county participation

 

36.170       Surcharge on appearance fees

 

(Program Standards)

 

36.175       Rules for administration of dispute resolution programs

 

(Dispute Resolution for Public Bodies)

 

36.179       Mediation and other alternative dispute resolution services for public bodies

 

(Mediation in Civil Cases)

 

36.185       Referral of civil dispute to mediation; objection; information to parties

 

36.190       Stipulation to mediation; selection of mediator; stay of proceedings

 

36.195       Presence of attorney; authority and duties of mediator; notice to court at completion of mediation

 

36.200       Mediation panels; qualification; procedure for selecting mediator

 

(Liability of Mediators and Programs)

 

36.210       Liability of mediators and programs

 

(Confidentiality of Mediation Communications and Agreements)

 

36.220       Confidentiality of mediation communications and agreements; exceptions

 

36.222       Admissibility and disclosure of mediation communications and agreements in subsequent adjudicatory proceedings

 

36.224       State agencies; confidentiality of mediation communications; rules

 

36.226       Public bodies other than state agencies; confidentiality of mediation communications

 

36.228       Mediations in which two or more public bodies are parties

 

36.230       Public bodies; confidentiality of mediation agreements

 

36.232       Disclosures allowed for reporting, research, training and educational purposes

 

36.234       Parties to mediation

 

36.236       Effect on other laws

 

36.238       Application of ORS 36.210 and 36.220 to 36.238

 

MEDIATION OF FORECLOSURE OF AGRICULTURAL PROPERTY

 

36.250       Definitions for ORS 36.250 to 36.270

 

36.252       Director of Agriculture or designee to serve as agricultural mediation service coordinator; rules

 

36.254       Contracts for mediation services

 

36.256       Request for mediation services; eligibility; form of request; response

 

36.258       Qualification, duties and authority of mediator

 

36.260       Mediation agreement; effect of agreement

 

36.262       Confidentiality of mediation materials

 

36.264       Civil immunity for mediators and mediation services

 

36.266       Suspension of court proceedings during mediation; dismissal of action

 

36.268       Provision of mediation services contingent on funding

 

36.270       Utilization of mediation program for other disputes

 

COURT ARBITRATION PROGRAM

 

36.400       Mandatory arbitration programs

 

36.405       Referral to mandatory arbitration; exemptions

 

36.410       Stipulation for arbitration; conditions; relief

 

36.415       Arbitration after waiver of amount of claim exceeding $50,000; motion for referral to arbitration

 

36.420       Notice of arbitration hearing; open proceeding; compensation and expenses

 

36.425       Filing of decision and award; notice of appeal; trial de novo; attorney fees and costs; effect of arbitration decision and award

 

OREGON INTERNATIONAL COMMERCIAL ARBITRATION AND CONCILIATION ACT

 

36.450       Definitions for ORS 36.450 to 36.558

 

36.452       Policy

 

36.454       Application of ORS 36.450 to 36.558; when arbitration or conciliation agreement is international; validity of written agreements

 

36.456       Construction of ORS 36.450 to 36.558

 

36.458       When written communication considered to have been received

 

36.460       Waiver of objection to arbitration

 

36.462       Prohibition on intervention by court

 

36.464       Venue

 

36.466       Arbitration agreements to be in writing

 

36.468       Application to stay judicial proceedings and compel arbitration

 

36.470       Interim judicial relief; factors considered by court; determination of arbitral tribunal’s jurisdiction

 

36.472       Number of arbitrators

 

36.474       Procedure for appointment of arbitrators; appointment by circuit court

 

36.476       Disclosure by proposed arbitrators and conciliators; waiver of disclosure; grounds for challenge

 

36.478       Procedure for challenging arbitrator

 

36.480       Withdrawal of arbitrator; termination of mandate

 

36.482       Substitute arbitrator; effect of substitution

 

36.484       Arbitral tribunal may rule on own jurisdiction; time for raising issue of jurisdiction; review by circuit court

 

36.486       Interim measures of protection ordered by arbitral tribunal; security

 

36.488       Fairness in proceedings

 

36.490       Procedures subject to agreement by parties; procedure in absence of agreement

 

36.492       Place of arbitration

 

36.494       Commencement of arbitral proceedings

 

36.496       Language used in proceedings

 

36.498       Contents of statements by claimant and respondent; amendment or supplement

 

36.500       Oral hearing; notice; discovery

 

36.502       Effect of failure to make required statement or to appear at oral hearing

 

36.504       Appointment of experts

 

36.506       Circuit court assistance in taking evidence; circuit court authorized to enter certain orders upon application

 

36.508       Choice of laws

 

36.510       Decision of arbitral tribunal

 

36.512       Settlement

 

36.514       Arbitral award; contents; interim award; award for costs of arbitration

 

36.516       Termination of arbitral proceedings

 

36.518       Correction of errors in award; interpretation of award; additional award

 

36.520       Setting aside award; grounds; time for application; circuit court fees

 

36.522       Enforcement of award; procedure; fee; entry of judgment

 

36.524       Grounds for refusal to enforce award; fee

 

36.526       Provisions to be interpreted in good faith

 

36.528       Policy to encourage conciliation

 

36.530       Guiding principles of conciliators

 

36.532       Manner of conducting conciliation proceedings

 

36.534       Draft conciliation settlement

 

36.536       Prohibition on use of statements, admissions or documents arising out of conciliation proceedings

 

36.538       Conciliation to act as stay of other proceedings; tolling of limitation periods during conciliation

 

36.540       Termination of conciliation proceedings

 

36.542       Conciliator not to be arbitrator or take part in arbitral or judicial proceedings

 

36.544       Submission to conciliation not waiver

 

36.546       Conciliation agreement to be treated as arbitral award

 

36.548       Costs of conciliation proceedings

 

36.550       Payment of costs

 

36.552       Effect of conciliation on jurisdiction of courts

 

36.554       Immunities

 

36.556       Severability

 

36.558       Short title

 

UNIFORM ARBITRATION ACT

 

36.600       Definitions

 

36.605       Notice

 

36.610       Effect of agreement to arbitrate; nonwaivable provisions

 

36.615       Application for judicial relief; fees

 

36.620       Validity of agreement to arbitrate

 

36.625       Petition to compel or stay arbitration

 

36.630       Provisional remedies

 

36.635       Initiation of arbitration

 

36.640       Consolidation of separate arbitration proceedings

 

36.645       Appointment of arbitrator; service as neutral arbitrator

 

36.650       Disclosure by arbitrator

 

36.655       Action by majority

 

36.660       Immunity of arbitrator; competency to testify; attorney fees and costs

 

36.665       Arbitration process

 

36.670       Representation by a lawyer; representation of legal or commercial entities

 

36.675       Witnesses; subpoenas; depositions; discovery

 

36.680       Judicial enforcement of preaward ruling by arbitrator

 

36.685       Award

 

36.690       Change of award by arbitrator

 

36.695       Remedies; fees and expenses of arbitration proceeding

 

36.700       Confirmation of award

 

36.705       Vacating award

 

36.710       Modification or correction of award

 

36.715       Judgment on award; attorney fees and litigation expenses

 

36.720       Jurisdiction

 

36.725       Venue

 

36.730       Appeals

 

36.735       Uniformity of application and construction

 

36.740       Relationship to electronic signatures in Global and National Commerce Act

 

DISPUTE RESOLUTION

 

(Generally)

 

      36.100 Policy for ORS 36.100 to 36.238. It is the policy and purpose of ORS 36.100 to 36.238 that, when two or more persons cannot settle a dispute directly between themselves, it is preferable that the disputants be encouraged and assisted to resolve their dispute with the assistance of a trusted and competent third party mediator, whenever possible, rather than the dispute remaining unresolved or resulting in litigation. [1989 c.718 §1; 2003 c.791 §9]

 

      36.105 Declaration of purpose of ORS 36.100 to 36.238. The Legislative Assembly declares that it is the purpose of ORS 36.100 to 36.238 to:

      (1) Foster the development of community-based programs that will assist citizens in resolving disputes and developing skills in conflict resolution;

      (2) Allow flexible and diverse programs to be developed in this state, to meet specific needs in local areas and to benefit this state as a whole through experiments using a variety of models of peaceful dispute resolution;

      (3) Find alternative methods for addressing the needs of crime victims in criminal cases when those cases are either not prosecuted for lack of funds or can be more efficiently handled outside the courts;

      (4) Provide a method to evaluate the effect of dispute resolution programs on communities, local governments, the justice system and state agencies;

      (5) Encourage the development and use of mediation panels for resolution of civil litigation disputes;

      (6) Foster the development or expansion of integrated, flexible and diverse state agency programs that involve state and local agencies and the public and that provide for use of alternative means of dispute resolution pursuant to ORS 183.502; and

      (7) Foster efforts to integrate community, judicial and state agency dispute resolution programs. [1989 c.718 §2; 1997 c.706 §3; 2003 c.791 §10]

 

      36.110 Definitions for ORS 36.100 to 36.238. As used in ORS 36.100 to 36.238:

      (1) “Arbitration” means any arbitration whether or not administered by a permanent arbitral institution.

      (2) “Dean” means the Dean of the University of Oregon School of Law.

      (3) “Dispute resolution program” means an entity that receives a grant under ORS 36.155 to provide dispute resolution services.

      (4) “Dispute resolution services” includes but is not limited to mediation, conciliation and arbitration.

      (5) “Mediation” means a process in which a mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy and includes all contacts between a mediator and any party or agent of a party, until such time as a resolution is agreed to by the parties or the mediation process is terminated.

      (6) “Mediation agreement” means an agreement arising out of a mediation, including any term or condition of the agreement.

      (7) “Mediation communications” means:

      (a) All communications that are made, in the course of or in connection with a mediation, to a mediator, a mediation program or a party to, or any other person present at, the mediation proceedings; and

      (b) All memoranda, work products, documents and other materials, including any draft mediation agreement, that are prepared for or submitted in the course of or in connection with a mediation or by a mediator, a mediation program or a party to, or any other person present at, mediation proceedings.

      (8) “Mediation program” means a program through which mediation is made available and includes the director, agents and employees of the program.

      (9) “Mediator” means a third party who performs mediation. “Mediator” includes agents and employees of the mediator or mediation program and any judge conducting a case settlement conference.

      (10) “Public body” has the meaning given that term in ORS 174.109.

      (11) “State agency” means any state officer, board, commission, bureau, department, or division thereof, in the executive branch of state government. [1989 c.718 §3; 1997 c.670 §11; 2003 c.791 §§11,11a; 2005 c.817 §3]

 

(Dispute Resolution Programs)

 

      36.115 [1989 c.718 §4; 1991 c.538 §1; repealed by 2003 c.791 §33]

 

      36.120 [1989 c.718 §5; repealed by 2003 c.791 §33]

 

      36.125 [1989 c.718 §6; repealed by 2003 c.791 §33]

 

      36.130 [1989 c.718 §7; repealed by 2003 c.791 §33]

 

      36.135 Review of dispute resolution programs; suspension or termination of funding. The Dean of the University of Oregon School of Law shall periodically review dispute resolution programs in this state. If the dean determines that there are reasonable grounds to believe that a program is not in substantial compliance with the standards and guidelines adopted under ORS 36.175, the dean may suspend or terminate the funding of the program under ORS 36.155 and recover any unexpended funds or improperly expended funds from the program. [1989 c.718 §8; 1995 c.781 §31; 2003 c.791 §12; 2005 c.817 §4]

 

      36.140 [1989 c.718 §9; repealed by 2003 c.791 §33]

 

      36.145 Dispute Resolution Account. The Dispute Resolution Account is established in the State Treasury, separate and distinct from the General Fund. All moneys received under ORS 36.150 shall be deposited to the credit of the account. Notwithstanding the provisions of ORS 291.238, all moneys in the account are continuously appropriated to the Department of Higher Education for the purposes for which the moneys were made available and shall be expended in accordance with the terms and conditions upon which the moneys were made available. [1989 c.718 §10; 1997 c.801 §44; 2003 c.791 §§13,13a; 2005 c.817 §4a]

 

      36.150 Additional funding. The Department of Higher Education, on behalf of the Mark O. Hatfield School of Government and the University of Oregon School of Law, may accept and expend moneys from any public or private source, including the federal government, made available for the purpose of encouraging, promoting or establishing dispute resolution programs in Oregon or to facilitate and assist the schools in carrying out the responsibilities of the schools under ORS 36.100 to 36.238 and 183.502. All moneys received by the Department of Higher Education under this section shall be deposited in the Dispute Resolution Account. [1989 c.718 §11; 2003 c.791 §15; 2005 c.817 §4b]

 

      36.155 Grants for dispute resolution services in counties; rules. The Dean of the University of Oregon School of Law shall award grants for the purpose of providing dispute resolution services in counties. Grants under this section shall be made from funds appropriated to the Department of Higher Education on behalf of the University of Oregon School of Law for distribution under this section. The State Board of Higher Education may adopt rules for the operation of the grant program. [1989 c.718 §12; 1991 c.538 §2; 1997 c.801 §41; 2001 c.581 §1; 2003 c.791 §16; 2005 c.817 §4c]

 

      36.160 Participation by counties; notice; contents; effect of failure to give notice. (1) To qualify for a grant under ORS 36.155, a county shall notify the Dean of the University of Oregon School of Law in accordance with the schedule established by rule by the dean. Such notification shall be by resolution of the appropriate board of county commissioners or, if the programs are to serve more than one county, by joint resolution. A county providing notice may select the dispute resolution programs to receive grants under ORS 36.155 for providing dispute resolution services within the county from among qualified dispute resolution programs.

      (2) The county’s notification to the dean must include a statement of agreement by the county to engage in a selection process and to select as the recipient of funding an entity capable of and willing to provide dispute resolution services according to the rules of the dean. The award of a grant is contingent upon the selection by the county of a qualified entity. The dean may provide consultation and technical assistance to a county to identify, develop and implement dispute resolution programs that meet the standards and guidelines adopted by the dean under ORS 36.175.

      (3) If a county does not issue a notification according to the schedule established by the dean, the dean may notify a county board of commissioners that the dean intends to make a grant to a dispute resolution program in the county. The dean may, after such notification, assume the county’s role under subsection (1) of this section unless the county gives the notice required by subsection (1) of this section. If the dean assumes the county’s role, the dean may contract with a qualified program for a two-year period. The county may, 90 days before the expiration of an agreement between a qualified program and the dean, notify the dean under subsection (1) of this section that the county intends to assume its role under subsection (1) of this section.

      (4) All dispute resolution programs identified for funding shall comply with the rules adopted under ORS 36.175.

      (5) All funded dispute resolution programs shall submit informational reports and statistics as required by the dean. [1989 c.718 §13; 1991 c.538 §3; 1995 c.515 §1; 1997 c.801 §43; 2003 c.791 §17; 2005 c.817 §4d]

 

      36.165 Termination of county participation. (1) Any county that receives a grant under ORS 36.155 may terminate its participation at the end of any month by delivering a resolution of its board of commissioners to the Dean of the University of Oregon School of Law not less than 180 days before the termination date.

      (2) If a county terminates its participation under ORS 36.160, the remaining portion of the grant made to the county under ORS 36.160 shall revert to the University of Oregon School of Law to be used as specified in ORS 36.155. [1989 c.718 §14; 2003 c.791 §18; 2005 c.817 §4e]

 

      36.170 Surcharge on appearance fees. (1) The clerks of the circuit courts shall collect a dispute resolution surcharge at the time a civil action, suit or proceeding is filed, including appeals. The surcharge shall be collected from a plaintiff or petitioner at the time the proceeding is filed. The surcharge shall be collected from a defendant or respondent upon making appearance. The amount of the surcharge shall be:

      (a) $9, if the action, suit or proceeding is subject to the filing fees established by ORS 21.110 (1), 21.310 or any other filing fee not specifically provided for in this section.

      (b) $7, if the action, suit or proceeding is subject to the filing fees established by ORS 21.110 (2) or 105.130, or if the action is filed in the small claims department of circuit court and the amount or value claimed exceeds $1,500.

      (c) $5, if the action, suit or proceeding is subject to the filing fees established by ORS 21.111.

      (d) $3 if the action is filed in the small claims department of circuit court and the amount or value claimed does not exceed $1,500.

      (2) All surcharges collected under this section shall be deposited by the State Court Administrator into the State Treasury to the credit of the General Fund. [1989 c.718 §15; 1991 c.538 §4; 1991 c.790 §4; 1995 c.664 §77; 1995 c.666 §12; 1997 c.801 §§38,39; 2003 c.791 §18a; 2005 c.817 §4f]

 

      Note: The amendments to 36.170 by section 26, chapter 860, Oregon Laws 2007, apply to filings made in circuit courts on or after July 1, 2009. See section 27, chapter 860, Oregon Laws 2007. The text that applies on and after July 1, 2009, is set forth for the user’s convenience.

      36.170. (1) The clerks of the circuit courts shall collect a dispute resolution surcharge at the time a civil action, suit or proceeding is filed, including appeals. The surcharge shall be collected from a plaintiff or petitioner at the time the proceeding is filed. The surcharge shall be collected from a defendant or respondent upon making appearance. The amount of the surcharge shall be:

      (a) $6, if the action, suit or proceeding is subject to the filing fees established by ORS 21.110 (1), 21.310 or any other filing fee not specifically provided for in this section.

      (b) $5, if the action, suit or proceeding is subject to the filing fees established by ORS 21.110 (2) or 105.130, or if the action is filed in the small claims department of circuit court and the amount or value claimed exceeds $1,500.

      (c) $3, if the action, suit or proceeding is subject to the filing fees established by ORS 21.111.

      (d) $2, if the action is filed in the small claims department of circuit court and the amount or value claimed does not exceed $1,500.

      (2) All surcharges collected under this section shall be deposited by the State Court Administrator into the State Treasury to the credit of the General Fund.

 

(Program Standards)

 

      36.175 Rules for administration of dispute resolution programs. (1) The Dean of the University of Oregon School of Law shall adopt by rule:

      (a) Standards and guidelines for dispute resolution programs receiving grants under ORS 36.155;

      (b) Minimum reporting requirements for dispute resolution programs receiving grants under ORS 36.155;

      (c) Methods for evaluating dispute resolution programs receiving grants under ORS 36.155;

      (d) Minimum qualifications and training for persons conducting dispute resolution services in dispute resolution programs receiving grants under ORS 36.155;

      (e) Participating funds requirements, if any, for entities receiving grants under ORS 36.155;

      (f) Requirements, if any, for the payment by participants for services provided by a program receiving grants under ORS 36.155; and

      (g) Any other provisions or procedures for the administration of ORS 36.100 to 36.175.

      (2) This section does not apply to state agency dispute resolution programs. [1989 c.718 §16; 1997 c.706 §4; 2003 c.791 §19; 2005 c.817 §4g]

 

(Dispute Resolution for Public Bodies)

 

      36.179 Mediation and other alternative dispute resolution services for public bodies. The Mark O. Hatfield School of Government shall establish and operate a program to provide mediation and other alternative dispute resolution services to public bodies, as defined by ORS 174.109, and to persons who have disputes with public bodies, as defined by ORS 174.109. [2005 c.817 §11]

 

(Mediation in Civil Cases)

 

      36.180 [1989 c.718 §18; repealed by 2003 c.791 §33]

 

      36.185 Referral of civil dispute to mediation; objection; information to parties. After the appearance by all parties in any civil action, except proceedings under ORS 107.700 to 107.735 or 124.005 to 124.040, a judge of any circuit court may refer a civil dispute to mediation under the terms and conditions set forth in ORS 36.185 to 36.210. When a party to a case files a written objection to mediation with the court, the action shall be removed from mediation and proceed in a normal fashion. All civil disputants shall be provided with written information describing the mediation process, as provided or approved by the State Court Administrator, along with information on established court mediation opportunities. Filing parties shall be provided with this information at the time of filing a civil action. Responding parties shall be provided with this information by the filing party along with the initial service of filing documents upon the responding party. [1989 c.718 §19; 1993 c.327 §1; 1995 c.666 §13; 2003 c.791 §20]

 

      36.190 Stipulation to mediation; selection of mediator; stay of proceedings. (1) On written stipulation of all parties at any time prior to trial, the parties may elect to mediate their civil dispute under the terms and conditions of ORS 36.185 to 36.210.

      (2) Upon referral or election to mediate, the parties shall select a mediator by written stipulation or shall follow procedures for assignment of a mediator from the court’s panel of mediators.

      (3) During the period of any referred or elected mediation under ORS 36.185 to 36.210, all trial and discovery timelines and requirements shall be tolled and stayed as to the participants. Such tolling shall commence on the date of the referral or election to mediate and shall end on the date the court is notified in writing of the termination of the mediation by the mediator or one party requests the case be put back on the docket. All time limits and schedules shall be tolled, except that a judge shall have discretion to adhere to preexisting pretrial order dates, trial dates or dates relating to temporary relief. [1989 c.718 §20]

 

      36.195 Presence of attorney; authority and duties of mediator; notice to court at completion of mediation. (1) Unless otherwise agreed to in writing by the parties, the parties’ legal counsel shall not be present at any scheduled mediation sessions conducted under the provisions of ORS 36.100 to 36.175.

      (2) Attorneys and other persons who are not parties to a mediation may be included in mediation discussions at the mediator’s discretion, with the consent of the parties, for mediation held under the provisions of ORS 36.185 to 36.210.

      (3) The mediator, with the consent of the parties, may adopt appropriate rules to facilitate the resolution of the dispute and shall have discretion, with the consent of the parties, to suspend or continue mediation. The mediator may propose settlement terms either orally or in writing.

      (4) All court mediators shall encourage disputing parties to obtain individual legal advice and individual legal review of any mediated agreement prior to signing the agreement.

      (5) Within 10 judicial days of the completion of the mediation, the mediator shall notify the court whether an agreement has been reached by the parties. If the parties do not reach agreement, the mediator shall report that fact only to the court, but shall not make a recommendation as to resolution of the dispute without written consent of all parties or their legal counsel. The action shall then proceed in the normal fashion on either an expedited or regular pretrial list.

      (6) The court shall retain jurisdiction over a case selected for mediation and shall issue orders as it deems appropriate. [1989 c.718 §21]

 

      36.200 Mediation panels; qualification; procedure for selecting mediator. (1) A circuit court providing mediation referral under ORS 36.185 to 36.210 shall establish mediation panels. The mediators on such panels shall have such qualifications as established by rules adopted under ORS 1.002. Formal education in any particular field shall not be a prerequisite to serving as a mediator.

      (2) Unless instructed otherwise by the court, upon referral by the court to mediation, the clerk of the court shall select at least three individuals from the court’s panel of mediators and shall send their names to legal counsel for the parties, or to a party directly if not represented, with a request that each party state preferences within five judicial days. If timely objection is made to all of the individuals named, the court shall select some other individual from the mediator panel. Otherwise, the clerk, under the direction of the court, shall select as mediator one of the three individuals about whom no timely objection was made.

      (3) Upon the court’s or the parties’ own selection of a mediator, the clerk shall:

      (a) Notify the designated person of the assignment as mediator.

      (b) Provide the mediator with the names and addresses of the parties and their representatives and with copies of the order of assignment.

      (4) The parties to a dispute that is referred by the court to mediation may choose, at their option and expense, mediation services other than those suggested by the court, and entering into such private mediation services shall be subject to the same provisions of ORS 36.185 to 36.210.

      (5) Disputing parties in mediation shall be free, at their own expense, to retain jointly or individually, experts, attorneys, fact finders, arbitrators and other persons to assist the mediation, and all such dispute resolution efforts shall be subject to the protection of ORS 36.185 to 36.210. [1989 c.718 §22; 1993 c.327 §2; 2003 c.791 §21]