2007 Oregon Code - Chapter 36 :: Chapter 36 - Mediation and Arbitration
Chapter 36 — Mediation
and Arbitration
2007 EDITION
MEDIATION AND ARBITRATION
SPECIAL ACTIONS AND PROCEEDINGS
DISPUTE RESOLUTION
(Generally)
36.100Â Â Â Â Â Â Policy
for ORS 36.100 to 36.238
36.105Â Â Â Â Â Â Declaration
of purpose of ORS 36.100 to 36.238
36.110Â Â Â Â Â Â Definitions
for ORS 36.100 to 36.238
(Dispute Resolution Programs)
36.135Â Â Â Â Â Â Review
of dispute resolution programs; suspension or termination of funding
36.145Â Â Â Â Â Â Dispute
Resolution Account
36.150Â Â Â Â Â Â Additional
funding
36.155Â Â Â Â Â Â Grants
for dispute resolution services in counties; rules
36.160Â Â Â Â Â Â Participation
by counties; notice; contents; effect of failure to give notice
36.165Â Â Â Â Â Â Termination
of county participation
36.170Â Â Â Â Â Â Surcharge
on appearance fees
(Program Standards)
36.175Â Â Â Â Â Â Rules
for administration of dispute resolution programs
(Dispute Resolution for Public Bodies)
36.179Â Â Â Â Â Â Mediation
and other alternative dispute resolution services for public bodies
(Mediation in Civil Cases)
36.185Â Â Â Â Â Â Referral
of civil dispute to mediation; objection; information to parties
36.190Â Â Â Â Â Â Stipulation
to mediation; selection of mediator; stay of proceedings
36.195Â Â Â Â Â Â Presence
of attorney; authority and duties of mediator; notice to court at completion of
mediation
36.200Â Â Â Â Â Â Mediation
panels; qualification; procedure for selecting mediator
(Liability of Mediators and Programs)
36.210Â Â Â Â Â Â Liability
of mediators and programs
(Confidentiality of Mediation Communications
and Agreements)
36.220Â Â Â Â Â Â Confidentiality
of mediation communications and agreements; exceptions
36.222Â Â Â Â Â Â Admissibility
and disclosure of mediation communications and agreements in subsequent
adjudicatory proceedings
36.224Â Â Â Â Â Â State
agencies; confidentiality of mediation communications; rules
36.226Â Â Â Â Â Â Public
bodies other than state agencies; confidentiality of mediation communications
36.228Â Â Â Â Â Â Mediations
in which two or more public bodies are parties
36.230Â Â Â Â Â Â Public
bodies; confidentiality of mediation agreements
36.232Â Â Â Â Â Â Disclosures
allowed for reporting, research, training and educational purposes
36.234Â Â Â Â Â Â Parties
to mediation
36.236Â Â Â Â Â Â Effect
on other laws
36.238Â Â Â Â Â Â Application
of ORS 36.210 and 36.220 to 36.238
MEDIATION OF FORECLOSURE OF AGRICULTURAL
PROPERTY
36.250Â Â Â Â Â Â Definitions
for ORS 36.250 to 36.270
36.252Â Â Â Â Â Â Director
of Agriculture or designee to serve as agricultural mediation service coordinator;
rules
36.254Â Â Â Â Â Â Contracts
for mediation services
36.256Â Â Â Â Â Â Request
for mediation services; eligibility; form of request; response
36.258Â Â Â Â Â Â Qualification,
duties and authority of mediator
36.260Â Â Â Â Â Â Mediation
agreement; effect of agreement
36.262Â Â Â Â Â Â Confidentiality
of mediation materials
36.264Â Â Â Â Â Â Civil
immunity for mediators and mediation services
36.266Â Â Â Â Â Â Suspension
of court proceedings during mediation; dismissal of action
36.268Â Â Â Â Â Â Provision
of mediation services contingent on funding
36.270Â Â Â Â Â Â Utilization
of mediation program for other disputes
COURT ARBITRATION PROGRAM
36.400Â Â Â Â Â Â Mandatory
arbitration programs
36.405Â Â Â Â Â Â Referral
to mandatory arbitration; exemptions
36.410Â Â Â Â Â Â Stipulation
for arbitration; conditions; relief
36.415Â Â Â Â Â Â Arbitration
after waiver of amount of claim exceeding $50,000; motion for referral to
arbitration
36.420Â Â Â Â Â Â Notice
of arbitration hearing; open proceeding; compensation and expenses
36.425Â Â Â Â Â Â Filing
of decision and award; notice of appeal; trial de novo; attorney fees and
costs; effect of arbitration decision and award
36.450Â Â Â Â Â Â Definitions
for ORS 36.450 to 36.558
36.452Â Â Â Â Â Â Policy
36.454Â Â Â Â Â Â Application
of ORS 36.450 to 36.558; when arbitration or conciliation agreement is
international; validity of written agreements
36.456Â Â Â Â Â Â Construction
of ORS 36.450 to 36.558
36.458Â Â Â Â Â Â When
written communication considered to have been received
36.460Â Â Â Â Â Â Waiver
of objection to arbitration
36.462Â Â Â Â Â Â Prohibition
on intervention by court
36.464Â Â Â Â Â Â Venue
36.466Â Â Â Â Â Â Arbitration
agreements to be in writing
36.468Â Â Â Â Â Â Application
to stay judicial proceedings and compel arbitration
36.470Â Â Â Â Â Â Interim
judicial relief; factors considered by court; determination of arbitral
tribunalÂ’s jurisdiction
36.472Â Â Â Â Â Â Number
of arbitrators
36.474Â Â Â Â Â Â Procedure
for appointment of arbitrators; appointment by circuit court
36.476Â Â Â Â Â Â Disclosure
by proposed arbitrators and conciliators; waiver of disclosure; grounds for
challenge
36.478Â Â Â Â Â Â Procedure
for challenging arbitrator
36.480Â Â Â Â Â Â Withdrawal
of arbitrator; termination of mandate
36.482Â Â Â Â Â Â Substitute
arbitrator; effect of substitution
36.484Â Â Â Â Â Â Arbitral
tribunal may rule on own jurisdiction; time for raising issue of jurisdiction;
review by circuit court
36.486Â Â Â Â Â Â Interim
measures of protection ordered by arbitral tribunal; security
36.488Â Â Â Â Â Â Fairness
in proceedings
36.490Â Â Â Â Â Â Procedures
subject to agreement by parties; procedure in absence of agreement
36.492Â Â Â Â Â Â Place
of arbitration
36.494Â Â Â Â Â Â Commencement
of arbitral proceedings
36.496Â Â Â Â Â Â Language
used in proceedings
36.498Â Â Â Â Â Â Contents
of statements by claimant and respondent; amendment or supplement
36.500Â Â Â Â Â Â Oral
hearing; notice; discovery
36.502Â Â Â Â Â Â Effect
of failure to make required statement or to appear at oral hearing
36.504Â Â Â Â Â Â Appointment
of experts
36.506Â Â Â Â Â Â Circuit
court assistance in taking evidence; circuit court authorized to enter certain
orders upon application
36.508Â Â Â Â Â Â Choice
of laws
36.510Â Â Â Â Â Â Decision
of arbitral tribunal
36.512Â Â Â Â Â Â Settlement
36.514Â Â Â Â Â Â Arbitral
award; contents; interim award; award for costs of arbitration
36.516Â Â Â Â Â Â Termination
of arbitral proceedings
36.518Â Â Â Â Â Â Correction
of errors in award; interpretation of award; additional award
36.520Â Â Â Â Â Â Setting
aside award; grounds; time for application; circuit court fees
36.522Â Â Â Â Â Â Enforcement
of award; procedure; fee; entry of judgment
36.524Â Â Â Â Â Â Grounds
for refusal to enforce award; fee
36.526Â Â Â Â Â Â Provisions
to be interpreted in good faith
36.528Â Â Â Â Â Â Policy
to encourage conciliation
36.530Â Â Â Â Â Â Guiding
principles of conciliators
36.532Â Â Â Â Â Â Manner
of conducting conciliation proceedings
36.534Â Â Â Â Â Â Draft
conciliation settlement
36.536Â Â Â Â Â Â Prohibition
on use of statements, admissions or documents arising out of conciliation
proceedings
36.538Â Â Â Â Â Â Conciliation
to act as stay of other proceedings; tolling of limitation periods during
conciliation
36.540Â Â Â Â Â Â Termination
of conciliation proceedings
36.542Â Â Â Â Â Â Conciliator
not to be arbitrator or take part in arbitral or judicial proceedings
36.544Â Â Â Â Â Â Submission
to conciliation not waiver
36.546Â Â Â Â Â Â Conciliation
agreement to be treated as arbitral award
36.548Â Â Â Â Â Â Costs
of conciliation proceedings
36.550Â Â Â Â Â Â Payment
of costs
36.552Â Â Â Â Â Â Effect
of conciliation on jurisdiction of courts
36.554Â Â Â Â Â Â Immunities
36.556Â Â Â Â Â Â Severability
36.558Â Â Â Â Â Â Short
title
UNIFORM ARBITRATION ACT
36.600Â Â Â Â Â Â Definitions
36.605Â Â Â Â Â Â Notice
36.610Â Â Â Â Â Â Effect
of agreement to arbitrate; nonwaivable provisions
36.615Â Â Â Â Â Â Application
for judicial relief; fees
36.620Â Â Â Â Â Â Validity
of agreement to arbitrate
36.625Â Â Â Â Â Â Petition
to compel or stay arbitration
36.630Â Â Â Â Â Â Provisional
remedies
36.635Â Â Â Â Â Â Initiation
of arbitration
36.640Â Â Â Â Â Â Consolidation
of separate arbitration proceedings
36.645Â Â Â Â Â Â Appointment
of arbitrator; service as neutral arbitrator
36.650Â Â Â Â Â Â Disclosure
by arbitrator
36.655Â Â Â Â Â Â Action
by majority
36.660Â Â Â Â Â Â Immunity
of arbitrator; competency to testify; attorney fees and costs
36.665Â Â Â Â Â Â Arbitration
process
36.670Â Â Â Â Â Â Representation
by a lawyer; representation of legal or commercial entities
36.675Â Â Â Â Â Â Witnesses;
subpoenas; depositions; discovery
36.680Â Â Â Â Â Â Judicial
enforcement of preaward ruling by arbitrator
36.685Â Â Â Â Â Â Award
36.690Â Â Â Â Â Â Change
of award by arbitrator
36.695Â Â Â Â Â Â Remedies;
fees and expenses of arbitration proceeding
36.700Â Â Â Â Â Â Confirmation
of award
36.705Â Â Â Â Â Â Vacating
award
36.710Â Â Â Â Â Â Modification
or correction of award
36.715Â Â Â Â Â Â Judgment
on award; attorney fees and litigation expenses
36.720Â Â Â Â Â Â Jurisdiction
36.725Â Â Â Â Â Â Venue
36.730Â Â Â Â Â Â Appeals
36.735Â Â Â Â Â Â Uniformity
of application and construction
36.740Â Â Â Â Â Â 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 countyÂ’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 countyÂ’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 userÂ’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 courtÂ’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 partiesÂ’ 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
mediatorÂ’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 courtÂ’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]
     36.205 [1989 c.718 §23; 1995 c.678 §1; repealed by
1997 c.670 §15]
(Liability of
Mediators and Programs)
     36.210
Liability of mediators and programs. (1) Mediators, mediation programs and dispute resolution programs are
not civilly liable for any act or omission done or made while engaged in
efforts to assist or facilitate a mediation or in providing other dispute
resolution services, unless the act or omission was made or done in bad faith,
with malicious intent or in a manner exhibiting a willful, wanton disregard of
the rights, safety or property of another.
     (2) Mediators, mediation programs and
dispute resolution programs are not civilly liable for the disclosure of a confidential
mediation communication unless the disclosure was made in bad faith, with
malicious intent or in a manner exhibiting a willful, wanton disregard of the
rights, safety or property of another.
     (3) The limitations on liability provided
by this section apply to the officers, directors, employees and agents of
mediation programs and dispute resolution programs. [1989 c.718 §24; 1995 c.678
§2; 1997 c.670 §12; 2001 c.72 §1; 2003 c.791 §§22,22a]
(Confidentiality
of Mediation Communications and Agreements)
     36.220
Confidentiality of mediation communications and agreements; exceptions. (1) Except as provided in ORS 36.220 to
36.238:
     (a) Mediation communications are
confidential and may not be disclosed to any other person.
     (b) The parties to a mediation may agree
in writing that all or part of the mediation communications are not
confidential.
     (2) Except as provided in ORS 36.220 to
36.238:
     (a) The terms of any mediation agreement
are not confidential.
     (b) The parties to a mediation may agree
that all or part of the terms of a mediation agreement are confidential.
     (3) Statements, memoranda, work products,
documents and other materials, otherwise subject to discovery, that were not
prepared specifically for use in a mediation, are not confidential.
     (4) Any document that, before its use in a
mediation, was a public record as defined in ORS 192.410 remains subject to
disclosure to the extent provided by ORS 192.410 to 192.505.
     (5) Any mediation communication relating
to child abuse that is made to a person who is required to report child abuse
under the provisions of ORS 419B.010 is not confidential to the extent that the
person is required to report the communication under the provisions of ORS
419B.010. Any mediation communication relating to elder abuse that is made to a
person who is required to report elder abuse under the provisions of ORS
124.050 to 124.095 is not confidential to the extent that the person is
required to report the communication under the provisions of ORS 124.050 to
124.095.
     (6) A mediation communication is not
confidential if the mediator or a party to the mediation reasonably believes
that disclosing the communication is necessary to prevent a party from
committing a crime that is likely to result in death or substantial bodily injury
to a specific person.
     (7) A party to a mediation may disclose
confidential mediation communications to a person if the partyÂ’s communication
with that person is privileged under ORS 40.010 to 40.585 or other provision of
law. A party may disclose confidential mediation communications to any other
person for the purpose of obtaining advice concerning the subject matter of the
mediation, if all parties to the mediation so agree.
     (8) The confidentiality of mediation
communications and agreements in a mediation in which a public body is a party,
or in which a state agency is mediating a dispute as to which the state agency
has regulatory authority, is subject to ORS 36.224, 36.226 and 36.230. [1997
c.670 §1]
     36.222
Admissibility and disclosure of mediation communications and agreements in
subsequent adjudicatory proceedings. (1) Except as provided in ORS 36.220 to 36.238, mediation
communications and mediation agreements that are confidential under ORS 36.220
to 36.238 are not admissible as evidence in any subsequent adjudicatory
proceeding, and may not be disclosed by the parties or the mediator in any
subsequent adjudicatory proceeding.
     (2) A party may disclose confidential
mediation communications or agreements in any subsequent adjudicative proceeding
if all parties to the mediation agree in writing to the disclosure.
     (3) A mediator may disclose confidential
mediation communications or confidential mediation agreements in a subsequent
adjudicatory proceeding if all parties to the mediation, the mediator, and the
mediation program, if any, agree in writing to the disclosure.
     (4) In any proceeding to enforce, modify
or set aside a mediation agreement, confidential mediation communications and
confidential mediation agreements may be disclosed to the extent necessary to
prosecute or defend the matter. At the request of a party, the court may seal
any part of the record of the proceeding to prevent further disclosure of
mediation communications or agreements to persons other than the parties to the
agreement.
     (5) In an action for damages or other
relief between a party to a mediation and a mediator or mediation program,
confidential mediation communications or confidential mediation agreements may
be disclosed to the extent necessary to prosecute or defend the matter. At the
request of a party, the court may seal any part of the record of the proceeding
to prevent further disclosure of the mediation communications or agreements.
     (6) A mediator may disclose confidential
mediation communications directly related to child abuse or elder abuse if the
mediator is a person who has a duty to report child abuse under ORS 419B.010 or
elder abuse under ORS 124.050 to 124.095.
     (7) The limitations on admissibility and
disclosure in subsequent adjudicatory proceedings imposed by this section apply
to any subsequent judicial proceeding, administrative proceeding or arbitration
proceeding. The limitations on disclosure imposed by this section include
disclosure during any discovery conducted as part of a subsequent adjudicatory
proceeding, and no person who is prohibited from disclosing information under
the provisions of this section may be compelled to reveal confidential
communications or agreements in any discovery proceeding conducted as part of a
subsequent adjudicatory proceeding. Any confidential mediation communication or
agreement that may be disclosed in a subsequent adjudicatory proceeding under
the provisions of this section may be introduced into evidence in the
subsequent adjudicatory proceeding. [1997 c.670 §2]
     36.224
State agencies; confidentiality of mediation communications; rules. (1) Except as provided in this section,
mediation communications in mediations in which a state agency is a party, or
in which a state agency is mediating a dispute as to which the state agency has
regulatory authority, are not confidential and may be disclosed or admitted as
evidence in subsequent adjudicatory proceedings, as described in ORS 36.222
(7).
     (2) The Attorney General shall develop
rules that provide for the confidentiality of mediation communications in
mediations described in subsection (1) of this section. The rules shall also
provide for limitations on admissibility and disclosure in subsequent
adjudicatory proceedings, as described in ORS 36.222 (7). The rules shall
contain provisions governing mediations of workplace interpersonal disputes.
     (3) Rules developed by the Attorney
General under this section must include a provision for notice to the parties
to a mediation regarding the extent to which the mediation communications are
confidential or subject to disclosure or introduction as evidence in subsequent
adjudicatory proceedings.
     (4) A state agency may adopt any or all of
the rules developed by the Attorney General under this section. The agency
shall provide the Governor with a copy of the rules that the agency proposes to
adopt at the time that the agency gives notice of intended action under ORS
183.335. The Governor may notify the agency that the Governor disapproves of
the proposed rules at any time before the agency files the rules with the
Secretary of State under ORS 183.355.
     (5) Except as provided in ORS 36.222,
mediation communications in any mediation regarding a claim for workersÂ’
compensation benefits conducted pursuant to rules adopted by the WorkersÂ’
Compensation Board are confidential, are not subject to disclosure under ORS
192.410 to 192.505 and may not be disclosed or admitted as evidence in
subsequent adjudicatory proceedings, as described in ORS 36.222 (7), without
regard to whether a state agency or other public body is a party to the
mediation or is the mediator in the mediation.
     (6) Mediation communications made
confidential by a rule adopted by a state agency under this section are not
subject to disclosure under ORS 192.410 to 192.505. [1997 c.670 §3; 2003 c.791 §23;
2005 c.333 §1]
     36.226
Public bodies other than state agencies; confidentiality of mediation
communications. (1) Except
as provided in subsection (2) of this section, mediation communications in
mediations in which a public body other than a state agency is a party are
confidential and may not be disclosed or admitted as evidence in subsequent
adjudicatory proceedings, as described in ORS 36.222 (7).
     (2) A public body other than a state
agency may adopt a policy that provides that all or part of mediation
communications in mediations in which the public body is a party will not be
confidential. If a public body adopts a policy under this subsection, notice of
the policy must be provided to all other parties in mediations that are subject
to the policy. [1997 c.670 §4]
     36.228
Mediations in which two or more public bodies are parties. (1) Notwithstanding any other provision of
ORS 36.220 to 36.238, if the only parties to a mediation are public bodies,
mediation communications and mediation agreements in the mediation are not
confidential except to the extent those communications or agreements are exempt
from disclosure under ORS 192.410 to 192.505. Mediation of workplace
interpersonal disputes between employees of a public body is not subject to
this subsection.
     (2) Notwithstanding any other provision of
ORS 36.220 to 36.238, if two or more public bodies are parties to a mediation
in which a private person is also a party, mediation communications in the
mediation are not confidential if the laws, rules or policies governing
confidentiality of mediation communications for at least one of the public
bodies provide that mediation communications in the mediation are not
confidential.
     (3) Notwithstanding any other provision of
ORS 36.220 to 36.238, if two or more public bodies are parties to a mediation
in which a private person is also a party, mediation agreements in the
mediation are not confidential if the laws, rules or policies governing
confidentiality of mediation agreements for at least one of the public bodies
provide that mediation agreements in the mediation are not confidential. [1997
c.670 §4a; 2007 c.12 §1]
     36.230
Public bodies; confidentiality of mediation agreements. (1) Except as provided in this section, mediation
agreements are not confidential if a public body is a party to the mediation or
if the mediation is one in which a state agency is mediating a dispute as to
which the state agency has regulatory authority.
     (2) If a public body is a party to a mediation
agreement, any provisions of the agreement that are exempt from disclosure as a
public record under ORS 192.410 to 192.505 are confidential.
     (3) If a public body is a party to a
mediation agreement, and the agreement is subject to the provisions of ORS
17.095, the terms of the agreement are confidential to the extent that those
terms are confidential under ORS 17.095 (2).
     (4) If a public body is a party to a
mediation agreement arising out of a workplace interpersonal dispute:
     (a) The agreement is confidential if the
public body is not a state agency, unless the public body adopts a policy that
provides otherwise;
     (b) The agreement is confidential if the
public body is a state agency only to the extent that the state agency has
adopted a rule under ORS 36.224 that so provides; and
     (c) Any term of an agreement that requires
an expenditure of public funds, other than expenditures of $1,000 or less for
employee training, employee counseling or purchases of equipment that remain
the property of the public body, may not be made confidential by a rule or
policy of a public body. [1997 c.670 §5; 2005 c.352 §2]
     36.232
Disclosures allowed for reporting, research, training and educational purposes. (1) If a public body conducts or makes
available a mediation, ORS 36.220 to 36.238 do not limit the ability of the
mediator to report the disposition of the mediation to that public body at the
conclusion of the mediation proceeding. The report made by a mediator to a
public body under this subsection may not disclose specific confidential
mediation communications made in the mediation.
     (2) If a public body conducts or makes
available a mediation, ORS 36.220 to 36.238 do not limit the ability of the
public body to compile and disclose general statistical information concerning
matters that have gone to mediation if the information does not identify
specific cases.
     (3) In any mediation in a case that has
been filed in court, ORS 36.220 to 36.238 do not limit the ability of the court
to:
     (a) Require the parties or the mediator to
report to the court the disposition of the mediation at the conclusion of the
mediation proceeding;
     (b) Disclose records reflecting which
matters have been referred for mediation; or
     (c) Disclose the disposition of the matter
as reported to the court.
     (4) ORS 36.220 to 36.238 do not limit the
ability of a mediator or mediation program to use or disclose confidential
mediation communications, the disposition of matters referred for mediation and
the terms of mediation agreements to another person for use in research,
training or educational purposes, subject to the following:
     (a) A mediator or mediation program may
only use or disclose confidential mediation communications if the
communications are used or disclosed in a manner that does not identify
individual mediations or parties.
     (b) A mediator or mediation program may
use or disclose confidential mediation communications that identify individual
mediations or parties only if and to the extent allowed by a written agreement
with, or written waiver of confidentiality by, the parties. [1997 c.670 §6]
     36.234
Parties to mediation. For
the purposes of ORS 36.220 to 36.238, a person, state agency or other public
body is a party to a mediation if the person or public body participates in a mediation
and has a direct interest in the controversy that is the subject of the
mediation. A person or public body is not a party to a mediation solely because
the person or public body is conducting the mediation, is making the mediation
available or is serving as an information resource at the mediation. [1997
c.670 §7]
     36.236
Effect on other laws. (1)
Nothing in ORS 36.220 to 36.238 affects any confidentiality created by other
law, including but not limited to confidentiality created by ORS 107.755 to
107.795.
     (2) Nothing in ORS 36.220 to 36.238
relieves a public body from complying with ORS 192.610 to 192.690. [1997 c.670 §9]
     36.238
Application of ORS 36.210 and 36.220 to 36.238. The provisions of ORS 36.210 and 36.220 to
36.238 apply to all mediations, whether conducted by a publicly funded program
or by a private mediation provider. [1997 c.670 §8]
     36.245 [1997 c.706 §2; repealed by 2003 c.791 §33]
MEDIATION OF
FORECLOSURE OF AGRICULTURAL PROPERTY
     36.250
Definitions for ORS 36.250 to 36.270. As used in ORS 36.250 to 36.270:
     (1) “Agricultural producer” means a person
who owns or is purchasing agricultural property for use in agriculture whose
gross sales in agriculture averaged $20,000 or more for the preceding three
years.
     (2) “Agricultural property” means real
property that is principally used for agriculture.
     (3) “Agriculture” means the production of
livestock, poultry, field crops, fruit, dairy, fur-bearing animals, Christmas
trees, vermiculture products, food fish or other animal and vegetable matter.
     (4) “Coordinator” means the Director of
Agriculture or a designee of the Director of Agriculture.
     (5) “Creditor” means the holder of a
mortgage or trust deed on agricultural property, a vendor of a real estate
contract for agricultural property, a person with a perfected security interest
in agricultural property or a judgment creditor with a judgment against an
agricultural producer.
     (6) “Financial analyst” means a person
knowledgeable in agriculture and financial matters that can provide financial
analysis to aid the agricultural producer in preparing the financial
information required under ORS 36.256. Financial analyst may include county
extension agents or other persons approved by the coordinator.
     (7) “Mediation” means the process by which
a mediator assists and facilitates an agricultural producer and a creditor in a
controversy relating to the mortgage, trust deed, real estate contract,
security interest or judgment that the creditor has in the agricultural
property of the agricultural producer in reaching a mutually acceptable
resolution of the controversy and includes all contacts between the mediator
and the agricultural producer or the creditor, until such time as a resolution
is agreed to by the agricultural producer and the creditor or until the
agricultural producer or the creditor discharges the mediator.
     (8) “Mediation service” means a person
selected by the coordinator to provide mediation under ORS 36.250 to 36.270.
     (9) “Mediator” means an impartial third
party who performs mediations.
     (10) “Person” means the state or a public
or private corporation, local government unit, public agency, individual,
partnership, association, firm, trust, estate or any other legal entity. [1989
c.967 §2; 2001 c.104 §9; 2005 c.657 §3]
     Note: 36.250 to 36.270 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter 36
or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     36.252
Director of Agriculture or designee to serve as agricultural mediation service
coordinator; rules. The
Director of Agriculture or a designee of the Director of Agriculture shall
serve as the agricultural mediation service coordinator. The coordinator shall
establish rules necessary to implement ORS 36.250 to 36.270. The rules shall
include, but need not be limited to:
     (1) Reasonable mediator training
guidelines for persons providing mediation service under ORS 36.250 to 36.270.
     (2) Fees to be charged for mediation services.
The fee schedule should be sufficient to cover the costs of providing the
mediation service but shall not exceed $30 per hour per participant.
     (3) Methods for advertising the
availability of mediation services. [1989 c.967 §3]
     Note: See note under 36.250.
     36.254
Contracts for mediation services. The coordinator shall contract with a person to provide agricultural
producer-creditor mediation services. The coordinator may contract with, or use
the services of, a private mediation organization, community-based program,
state agency or a combination of organizations and agencies. The contract may
be terminated by the coordinator upon 30 daysÂ’ written notice and for good
cause. The organization awarded the contract is designated as the agricultural
mediation service for the duration of the contract. The agricultural mediation
service shall be an independent contractor and shall not be considered a state
agency for any purpose. [1989 c.967 §4]
     Note: See note under 36.250.
     36.256
Request for mediation services; eligibility; form of request; response. (1) An agricultural producer who is in
danger of foreclosure on agricultural property under ORS 86.010 to 86.990,
87.001 to 87.920 or 88.710 to 88.740 or a creditor, before or after beginning
foreclosure proceedings, may request mediation of the agricultural producerÂ’s
indebtedness by filing a request with the mediation service on a form provided
by the service. However, an agricultural producer or creditor may not request
mediation under this section unless, at the time the request is made, the
agricultural producer owes more than $100,000 to one or more creditors, and the
debt is either:
     (a) Secured by one or more mortgages or
trust deeds on the agricultural producerÂ’s agricultural property;
     (b) Evidenced by a real estate contract
covering the agricultural producerÂ’s agricultural property; or
     (c) The subject of one or more statutory
liens that have attached to the agricultural producerÂ’s agricultural property.
     (2) In filing a mediation request, the agricultural
producer shall provide:
     (a) The name and address of each creditor;
     (b) The amount claimed by each creditor;
     (c) The amount of the periodic installment
payments made to each creditor;
     (d) Any financial statements and projected
cash flow statements, including those related to any nonagricultural
activities;
     (e) The name of the person authorized to
enter into a binding mediation agreement; and
     (f) Any additional information the
mediation service may require.
     (3) In filing a mediation request, a
creditor shall provide:
     (a) Statements regarding the status of the
agricultural producerÂ’s loan performance;
     (b) The name and title of the
representative of the creditor authorized to enter into a binding mediation
agreement; and
     (c) Any additional information the
mediation service may require.
     (4) Nothing in ORS 36.250 to 36.270 shall
be construed to require an agricultural producer or creditor to engage or
continue in the mediation of any dispute or controversy. Mediation under ORS
36.250 to 36.270 shall be entirely voluntary for all persons who are parties to
the dispute or controversy, and if such persons agree to engage in mediation,
any one of the persons may at any time withdraw from mediation.
     (5) If an agricultural producer or a
creditor files a mediation request with the mediation service, the service
shall within 10 days after receipt of the request give written notice of the
request to any other person who is identified in the request for mediation as
parties to the dispute or controversy. The notice shall:
     (a) Be accompanied by a copy of the
request for mediation;
     (b) Generally describe the mediation
program created by ORS 36.250 to 36.270;
     (c) Explain that participation in
mediation is voluntary and that the recipient of the notice is not required to
engage in mediation or to continue to mediate if mediation is initiated;
     (d) Request that the recipient of the
notice advise the mediation service in writing and by certified mail within 10
days as to whether the recipient wishes to engage in mediation; and
     (e) Explain that if the written advice
required under paragraph (d) of this subsection is not received by the
mediation service within the 10-day period, the mediation request will be
considered denied.
     (6) If the person who receives the notice
of request for mediation under subsection (5) of this section wishes to engage
in mediation, the person shall advise the mediation service in writing within
the 10-day period specified in subsection (5) of this section. The response
shall include the appropriate information that the responding person would have
been required to include in a request for mediation under subsection (2) or (3)
of this section.
     (7) If the person who receives notice of
request for mediation under subsection (5) of this section does not wish to
engage in mediation, the person may but shall not be required to so advise the
mediation service.
     (8) If the person who receives the notice
of request for mediation under subsection (5) of this section does not advise
the mediation service in writing within the 10-day period specified in the
notice described in subsection (5) of this section that the person desires to
mediate, the request for mediation shall be considered denied.
     (9) The submission of a request for
mediation by an agricultural producer or a creditor shall not operate to stay,
impede or delay in any manner whatsoever the commencement, prosecution or
defense of any action or proceeding by any person.
     (10) If requested by the agricultural
producer, the coordinator shall provide the services of a financial analyst to
assist the agricultural producer in preparation of financial data for the first
mediation session.
     (11) ORS 36.250 to 36.270 are not
applicable to obligations or foreclosure proceedings with respect to which the
creditor is a financial institution, as defined in ORS 706.008. [1989 c.967 §5;
1995 c.277 §6; 1997 c.631 §566; 2005 c.22 §29]
     Note: See note under 36.250.
     36.258
Qualification, duties and authority of mediator. (1) A mediator must be an impartial person
knowledgeable in agriculture and financial matters.
     (2) In carrying out mediation under ORS
36.250 to 36.270, a mediator shall:
     (a) Listen to the agricultural producer
and any creditor desiring to be heard.
     (b) Attempt to facilitate a negotiated
agreement that provides for mutual satisfaction. Such an agreement may include
mutually agreed upon forbearance from litigation, rescheduled or renegotiated
debt, voluntary sale or other liquidation of agricultural property,
authorization for the agricultural producer to continue agriculture while
providing reasonable security to the creditor or any other mutually agreed upon
outcome.
     (c) Seek assistance from any public or
private agency to effect the goals of ORS 36.250 to 36.270.
     (d) Permit any person who is a party to
the mediation to be represented in all mediation proceedings by any person
selected by the party.
     (3) In carrying out a mediation under ORS
36.250 to 36.270, a mediator may invite additional creditors of the
agricultural producer to participate in the mediation. A creditor may be
invited to participate in a mediation regardless of whether the agricultural
producer is in arrears with the creditor. [1989 c.967 §6; 2001 c.104 §10]
     Note: See note under 36.250.
     36.260
Mediation agreement; effect of agreement. (1) If an agreement is reached between the agricultural producer and a
creditor, the mediator shall draft a written mediation agreement to be signed
by the agricultural producer and the creditor.
     (2) An agricultural producer and any
creditor who are parties to a mediation agreement:
     (a) Are bound by the terms of the
agreement;
     (b) May enforce the mediation agreement as
a legal contract; and
     (c) May use the mediation agreement as a
defense against an action contrary to the mediation agreement.
     (3) The mediator shall encourage the
parties to have the agreement reviewed by independent legal counsel before
signing the agreement. [1989 c.967 §7]
     Note: See note under 36.250.
     36.262
Confidentiality of mediation materials. (1) All memoranda, work products and other materials contained in the
case files of a mediator or mediation service are confidential. Any
communication made in, or in connection with, the mediation which relates to
the controversy being mediated, whether made to the mediator or a party, or to
any other person if made at a mediation session, is confidential. However, a
mediated agreement shall not be confidential unless the parties otherwise agree
in writing.
     (2) Confidential materials and
communications are not subject to disclosure in any judicial or administrative
proceeding except:
     (a) When all parties to the mediation
agree, in writing, to waive the confidentiality;
     (b) In a subsequent action between the
mediator and a party to the mediation for damages arising out of the mediation;
or
     (c) Statements, memoranda, materials and
other tangible evidence, otherwise subject to discovery, that were not prepared
specifically for use in and actually used in the mediation.
     (3) Notwithstanding subsection (2) of this
section, a mediator may not be compelled to testify in any proceeding, unless
all parties to the mediation and the mediator agree, in writing, to waive the
confidentiality. [1989 c.967 §8]
     Note: See note under 36.250.
     36.264
Civil immunity for mediators and mediation services. Mediators and mediation services shall be
immune from civil liability for, or resulting from, any act or omission done or
made while engaged in efforts to assist or facilitate a mediation, unless the
act or omission was made or done in bad faith, with malicious intent or in a
manner exhibiting a willful, wanton disregard of the rights, safety or property
of another. [1989 c.967 §9]
     Note: See note under 36.250.
     36.266
Suspension of court proceedings during mediation; dismissal of action. (1) During the pendency of any action
between a creditor and an agricultural producer, the court may, upon
stipulation by all parties requesting mediation under ORS 36.256, enter an
order suspending the action.
     (2) A suspension order under subsection
(1) of this section suspends all orders and proceedings in the action for the
time period specified in the suspension order. In specifying the time period,
the court shall exercise its discretion for the purpose of permitting the
parties to engage in mediation without prejudice to the rights of any person.
The suspension order may include other terms and conditions as the court may
consider appropriate. The suspension order may be revoked upon motion of any
party or upon motion of the court.
     (3) If all parties to the action agree, by
written stipulation, that all issues before the court are resolved by mediation
under ORS 36.250 to 36.270, the court shall dismiss the action. If the parties
do not agree that the issues are resolved or if the court revokes the
suspension order under subsection (2) of this section, the action shall proceed
as if mediation had not been attempted. [1989 c.967 §10]
     Note: See note under 36.250.
     36.268
Provision of mediation services contingent on funding. The duty of the State Department of
Agriculture and the Director of Agriculture to provide mediation services under
ORS 36.250 to 36.270 is contingent upon the existence and the level of funding
specifically made available to carry out that duty. Should continuation of mediation
services be threatened for lack of funding, the department shall proceed with
all diligence to secure additional funds, including but not limited to
requesting an additional allocation of funds from the Emergency Board. [1993
c.163 §2]
     Note: See note under 36.250.
     36.270
Utilization of mediation program for other disputes. (1) In addition to other mediation
activities authorized by law, the Director of Agriculture and the State
Department of Agriculture may utilize the mediation program to facilitate
resolution of other disputes directly related to department activities and
agricultural issues under the jurisdiction of the department.
     (2) Participation in mediation referred to
in subsection (1) of this section by parties to a dispute is voluntary, and a
party may withdraw from the proceedings at any time.
     (3) Notwithstanding the limitation on fees
prescribed by ORS 36.252 (2), the director shall recover from the parties to a
mediation referred to in subsection (1) of this section the actual cost of the
mediation proceedings. [1995 c.277 §5]
     Note: See note under 36.250.
     36.300 [Formerly 33.210; repealed by 2003 c.598 §57]
     36.305 [Formerly 33.220; repealed by 2003 c.598 §57]
     36.310 [Formerly 33.230; repealed by 2003 c.598 §57]
     36.315 [Formerly 33.240; repealed by 2003 c.598 §57]
     36.320 [Formerly 33.250; repealed by 2003 c.598 §57]
     36.325 [Formerly 33.260; repealed by 2003 c.598 §57]
     36.330 [Formerly 33.270; repealed by 2003 c.598 §57]
     36.335 [Formerly 33.280; repealed by 2003 c.598 §57]
     36.340 [Formerly 33.290; repealed by 2003 c.598 §57]
     36.345 [Formerly 33.300; repealed by 2003 c.598 §57]
     36.350 [Formerly 33.310; 1997 c.801 §53; 1999 c.63 §1;
2003 c.737 §35; repealed by 2003 c.598 §57]
     36.355 [Formerly 33.320; 1997 c.801 §54; 2003 c.737
§38; repealed by 2003 c.598 §57]
     36.360 [Formerly 33.330; repealed by 2003 c.598 §57]
     36.365 [Formerly 33.340; repealed by 2003 c.598 §57]
COURT
ARBITRATION PROGRAM
     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 arbitratorÂ’s decision
and award in the manner provided by ORS 36.425. [Formerly 33.350; 1993 c.482 §1;
1995 c.618 §10; 1995 c.658 §30a; 1997 c.46 §§3,4; 2005 c.274 §1]
     36.405
Referral to mandatory arbitration; exemptions. (1) 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.
[Formerly 33.360; 1995 c.455 §2a; 1995 c.618 §11; 1995 c.658 §31a; 1995 c.781 §32;
2005 c.274 §2]
     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. [Formerly
33.370; 1995 c.618 §12; 1995 c.658 §32; 2005 c.274 §3]
     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. [Formerly
33.380; 1995 c.618 §13; 1995 c.658 §33; 2005 c.274 §4]
     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. [Formerly
33.390; 1993 c.482 §2]
     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. [Formerly 33.400; 1993 c.482 §3;
1995 c.455 §3; 1995 c.618 §14a; 1995 c.658 §34; 1997 c.756 §§1,2; 2003 c.576 §170]
     36.450
Definitions for ORS 36.450 to 36.558. For the purposes of ORS 36.450 to 36.558:
     (1) “Arbitral award” means any decision of
the arbitral tribunal on the substance of the dispute submitted to it and
includes any interim, interlocutory or partial arbitral award.
     (2) “Arbitral tribunal” means a sole
arbitrator or a panel of arbitrators.
     (3) “Arbitration” means any arbitration
whether or not administered by a permanent arbitral institution.
     (4) “Arbitration agreement” means an
agreement by the parties to submit to arbitration all or certain disputes which
may arise between them in respect to a defined legal relationship, whether
contractual or not. An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement.
     (5) “Commercial” means matters arising from
all relationships of a commercial nature including, but not limited to, any of
the following transactions:
     (a) A transaction for the supply or
exchange of goods or services.
     (b) A distribution agreement.
     (c) A commercial representation or agency.
     (d) An exploitation agreement or
concession.
     (e) A joint venture or other forms of
industrial or business cooperation.
     (f) The carriage of goods or passengers by
air, sea, rail or road.
     (g) Construction.
     (h) Insurance.
     (i) Licensing.
     (j) Factoring.
     (k) Leasing.
     (L) Consulting.
     (m) Engineering.
     (n) Financing.
     (o) Banking.
     (p) The transfer of data or technology.
     (q) Intellectual or industrial property,
including trademarks, patents, copyrights and software programs.
     (r) Professional services.
     (6) “Conciliation” means any conciliation
whether or not administered by a permanent conciliation institution.
     (7) “Chief Justice” means the Chief
Justice of the Supreme Court of Oregon or designee.
     (8) “Circuit court” means the circuit
court in the county in this state selected as pursuant to ORS 36.464.
     (9) “Court” means a body or an organ of
the judicial system of a state or country.
     (10) “Party” means a party to an
arbitration or conciliation agreement.
     (11) “Supreme Court” means the Supreme
Court of Oregon. [1991 c.405 §4]
     36.452
Policy. (1) It is the policy
of the Legislative Assembly to encourage the use of arbitration and
conciliation to resolve disputes arising out of international relationships and
to assure access to the courts of this state for legal proceedings ancillary to
or otherwise in aid of such arbitration and conciliation and to encourage the
participation and use of Oregon facilities and resources to carry out the
purposes of ORS 36.450 to 36.558.
     (2) Any person may enter into a written
agreement to arbitrate or conciliate any existing dispute or any dispute
arising thereafter between that person and another. If the dispute is within
the scope of ORS 36.450 to 36.558, the agreement shall be enforced by the
courts of this state in accordance with ORS 36.450 to 36.558 without regard to
the justiciable character of the dispute. In addition, if the agreement is
governed by the law of this state, it shall be valid and enforceable in
accordance with ordinary principles of contract law. [1991 c.405 §2; 1993 c.18 §12]
     36.454
Application of ORS 36.450 to 36.558; when arbitration or conciliation agreement
is international; validity of written agreements. (1) ORS 36.450 to 36.558 apply to
international commercial arbitration and conciliation, subject to any agreement
in force between the
     (2) The provisions of ORS 36.450 to
36.558, except ORS 36.468, 36.470, 36.522 and 36.524, apply only if the place
of arbitration or conciliation is within the territory of the State of
     (3) An arbitration or conciliation
agreement is international if any of the following applies:
     (a) The parties to an arbitration or
conciliation agreement have, at the time of the conclusion of that agreement, their
places of business in different countries.
     (b) One of the following places is
situated outside the country in which the parties have their places of
business:
     (A) The place of arbitration or
conciliation if determined in, or pursuant to, the arbitration or conciliation
agreement.
     (B) Any place where a substantial part of
the obligations of the commercial relationship is to be performed.
     (C) The place with which the subject
matter of the dispute is most closely connected.
     (c) The parties have expressly agreed that
the subject matter of the arbitration or conciliation agreement relates to
commercial interests in more than one country.
     (d) The subject matter of the arbitration
or conciliation agreement is otherwise related to commercial interests in more
than one country.
     (4) For the purposes of subsection (3) of
this section:
     (a) If a party has more than one place of
business, the place of business is that which has the closest relationship to
the arbitration or conciliation agreement; or
     (b) If a party does not have a place of
business, reference is to be made to the habitual residence of the party.
     (5) If a written agreement to submit an
existing controversy to arbitration or a provision in a written contract to
submit to arbitration a controversy thereafter arising between the parties
qualifies for arbitration pursuant to this section, that written agreement or
provision shall be valid, enforceable and irrevocable, save on such grounds as
exist at law or in equity for the revocation of any contract.
     (6) Except as provided in this subsection,
ORS 36.450 to 36.558 shall not affect any other law of the State of
     36.456
Construction of ORS 36.450 to 36.558. (1) Except as specified in ORS 36.508, where a provision of ORS 36.450
to 36.558 leaves the parties free to determine a certain issue, such freedom
includes the right of the parties to authorize a third party, including an
institution, to make that determination.
     (2) Where a provision of ORS 36.450 to
36.558 refers to the fact that the parties have agreed or that they may agree
or in any other way refers to an agreement of the parties, such agreement
includes any arbitration or conciliation rules referred to in that agreement.
     (3) Except as provided in ORS 36.502 (1)
and 36.516 (2)(a), where a provision of ORS 36.450 to 36.558 refers to a claim,
it also applies to a counterclaim, and where it refers to a defense, it also
applies to a defense of a counterclaim. [1991 c.405 §5]
     36.458
When written communication considered to have been received. (1) Unless otherwise agreed by the parties:
     (a) Any written communication is
considered to have been received if it is delivered to the addressee personally
or if it is delivered at the place of business, habitual residence or mailing
address of the addressee. If none of these can be found after making a
reasonable inquiry, a written communication is considered to have been received
if it is sent to the addresseeÂ’s last-known place of business, habitual
residence or mailing address by registered letter or by any other means which
provides a record of the attempt to deliver it; and
     (b) The communication is considered to
have been received on the day it is so delivered.
     (2) The provisions of this section do not
apply to communications in court proceedings. [1991 c.405 §6]
     36.460
Waiver of objection to arbitration. (1) A party who knows that any provision of ORS 36.450 to 36.558 or of
any requirement under the arbitration agreement that has not been complied with
and yet proceeds with the arbitration without stating an objection to such
noncompliance without undue delay or, if a time limit is provided for stating
that objection, within that period of time, shall be deemed to have waived the
right to object.
     (2) For purposes of subsection (1) of this
section, “any provision of ORS 36.450 to 36.558” means any provision of ORS
36.450 to 36.558 in respect of which the parties may otherwise agree. [1991
c.405 §7]
     36.462
Prohibition on intervention by court. In matters governed by ORS 36.450 to 36.558, no court shall intervene
except where so provided in ORS 36.450 to 36.558 or in applicable federal law. [1991
c.405 §8]
     36.464
Venue. (1) The functions
referred to in ORS 36.468 and 36.470 shall be performed by the circuit court
in:
     (a) The county where the arbitration
agreement is to be performed or was made.
     (b) If the arbitration agreement does not
specify a county where the agreement is to be performed and the agreement was
not made in any county in the State of
     (c) In any case not covered by paragraph
(a) or (b) of this subsection, in any county in the State of
     (2) All other functions assigned by ORS
36.450 to 36.558 to the circuit court shall be performed by the circuit court
of the county in which the place of arbitration is located. [1991 c.405 §9]
     36.466
Arbitration agreements to be in writing. The arbitration agreement shall be in writing. An agreement is in
writing if it is contained in a document signed by the parties or in an
exchange of letters, telex, telegrams or other means of telecommunication which
provides a record of the agreement, or in an exchange of statements of claim
and defense in which the existence of an agreement is alleged by one party and
not denied by another. The reference in a contract to a document containing an
arbitration clause constitutes an arbitration agreement provided that the
contract is in writing and the reference is such as to make that clause a part
of the contract. [1991 c.405 §10]
     36.468
Application to stay judicial proceedings and compel arbitration. (1) When a party to an international
commercial arbitration agreement commences judicial proceedings seeking relief
with respect to a matter covered by the agreement to arbitrate, the court
shall, if a party so requests not later than when submitting the partyÂ’s first
statement on the substance of the dispute, stay the proceedings and refer the
parties to arbitration unless it finds that the agreement is null and void,
inoperative or incapable of being performed.
     (2) Arbitral proceedings may begin or
continue, and an award may be made, while a judicial proceeding described in
subsection (1) of this section is pending before the court.
     (3) A court may not, without a request
from a party made pursuant to subsection (1) of this section, refer the parties
to arbitration. [1991 c.405 §11; 1993 c.244 §1]
     36.470
Interim judicial relief; factors considered by court; determination of arbitral
tribunalÂ’s jurisdiction. (1)
It is not incompatible with an arbitration agreement for a party to request
from a court, before or during arbitral proceedings, an interim measure of protection
or for the court to grant such a measure.
     (2) Any party to an arbitration governed
by ORS 36.450 to 36.558 may request from the circuit court the enforcement of
an order of an arbitral tribunal granting an interim measure of protection
pursuant to ORS 36.486. Enforcement shall be granted pursuant to the law
applicable to the granting of the type of interim relief requested.
     (3) Measures which the circuit court may
grant in connection with a pending arbitration include, but are not limited to:
     (a) An order of attachment issued to
assure that the award to which the applicant may be entitled is not rendered
ineffectual by the dissipation of party assets.
     (b) A preliminary injunction granted in
order to protect trade secrets or to conserve goods which are the subject
matter of the arbitral dispute.
     (4) In considering a request for interim
relief, the court, subject to subsection (5) of this section, shall give
preclusive effect to any and all findings of fact of the arbitral tribunal,
including the probable validity of the claim which is the subject of the award
for interim relief that the arbitral tribunal has previously granted in the
proceeding in question, provided that such interim award is consistent with
public policy.
     (5) Where the arbitral tribunal has not
ruled on an objection to its jurisdiction, the court shall not grant preclusive
effect to the tribunalÂ’s findings until the court has made an independent
finding as to the jurisdiction of the arbitral tribunal. If the court rules
that the arbitral tribunal did not have jurisdiction, the application for
interim measures of relief shall be denied. Such a ruling by the court that the
arbitral tribunal lacks jurisdiction is not binding on the arbitral tribunal or
subsequent judicial proceedings. [1991 c.405 §12; 1993 c.244 §2]
     36.472
Number of arbitrators. The
parties may agree on the number of arbitrators. If the parties do not agree,
the number of arbitrators shall be one. [1991 c.405 §13]
     36.474
Procedure for appointment of arbitrators; appointment by circuit court. (1) No person shall be precluded by reason
of nationality from acting as an arbitrator unless otherwise agreed by the
parties.
     (2) The parties may agree on a procedure
for appointing the arbitrator or arbitrators, subject to the provisions of
subsections (4), (5) and (6) of this section.
     (3) If the parties do not agree on a
procedure for appointing the arbitrator or arbitrators:
     (a) In an arbitration with two parties and
involving three or more arbitrators, each party shall appoint one arbitrator
and the appointed arbitrators shall appoint the remaining arbitrators. If a
party fails to appoint an arbitrator within 30 days of receipt of a request to
do so from the other party or parties, or if the two appointed arbitrators fail
to agree on the remaining arbitrators within 30 days of their appointment,
then, upon the request of any party, the circuit court shall make the
appointment.
     (b) In an arbitration with more than two
parties or in an arbitration with two parties involving fewer than three
arbitrators, then, upon the request of any party, the arbitrator or arbitrators
shall be appointed by the circuit court.
     (4) Unless the parties’ agreement on the
appointment procedure provides other means for securing the appointment, any party
may request the circuit court to make the appointment if there is an
appointment procedure agreed upon by the parties and if:
     (a) A party fails to act as required under
such procedure;
     (b) The parties, or the appointed
arbitrators, are unable to reach an agreement as expected of them under such
procedure; or
     (c) A third party, including an
institution, fails to perform any function entrusted to it under such
procedure.
     (5) A decision by the circuit court on a
matter entrusted to it by subsection (3) or (4) of this section shall be final
and not subject to appeal.
     (6) The circuit court, in appointing an
arbitrator, shall have due regard to all of the following:
     (a) Any qualifications required of the
arbitrator by the agreement of the parties;
     (b) Other considerations as are likely to
secure the appointment of an independent and impartial arbitrator; and
     (c) The advisability of appointing an
arbitrator of a nationality other than those of the parties. [1991 c.405 §14;
1993 c.244 §3]
     36.476
Disclosure by proposed arbitrators and conciliators; waiver of disclosure;
grounds for challenge. (1)
Except as otherwise provided in ORS 36.450 to 36.558, all persons whose names
have been submitted for consideration for appointment or designation as
arbitrators or conciliators, or who have been appointed or designated as such,
shall, within 15 days, make a disclosure to the parties of any information
which might cause their impartiality to be questioned including, but not
limited to, any of the following instances:
     (a) The person has a personal bias or
prejudice concerning a party or personal knowledge of the disputed evidentiary
facts concerning the proceeding.
     (b) The person served as a lawyer in the
matter in controversy, or the person is or has been associated with another who
has participated in the matter during such association, or the person has been
a material witness concerning it.
     (c) The person served as an arbitrator or
conciliator in another proceeding involving one or more of the parties to the
proceeding.
     (d) The person, individually or as a
fiduciary, or the personÂ’s spouse or minor child, or anyone residing in the
personÂ’s household, has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other interest that could
be substantially affected by the outcome of the proceeding.
     (e) The person, the person’s spouse or
minor child, anyone residing in the personÂ’s household, any individual within
the third degree of relationship to any of them, or the spouse of any of them,
meets any of the following conditions:
     (A) The person is or has been a party to
the proceeding, or an officer, director or trustee of a party.
     (B) The person is acting or has acted as a
lawyer in the proceeding.
     (C) The person is known to have an
interest that could be substantially affected by the outcome of the proceeding.
     (D) The person is likely to be a material
witness in the proceeding.
     (f) The person has a close personal or
professional relationship with a person who meets any of the following
conditions:
     (A) The person is or has been a party to
the proceeding, or an officer, director or trustee of a party.
     (B) The person is acting or has acted as a
lawyer or representative in the proceeding.
     (C) The person is or expects to be
nominated as an arbitrator or conciliator in the proceedings.
     (D) The person is known to have an
interest that could be substantially affected by the outcome of the proceeding.
     (E) The person is likely to be a material
witness in the proceeding.
     (2) The obligation to disclose information
set forth in subsection (1) of this section is mandatory and cannot be waived
by the parties with respect to persons serving either as the sole arbitrator or
sole conciliator or as one of two arbitrators or conciliators or as the chief
or prevailing arbitrator or conciliator. The parties may otherwise agree to
waive such disclosure.
     (3) From the time of appointment and
throughout the arbitral proceedings, an arbitrator shall, without delay,
disclose to the parties any circumstances referred to in subsection (1) of this
section which were not previously disclosed.
     (4) Unless otherwise agreed by the parties
or allowed by the rules governing the arbitration, an arbitrator may be
challenged only if circumstances exist that give rise to justifiable doubts as
to the independence or impartiality of the arbitrator, or as to possession of
the qualifications upon which the parties have agreed.
     (5) A party may challenge an arbitrator
appointed by it, or in whose appointment it has participated, only for reasons
of which it becomes aware after the appointment has been made. [1991 c.405 §15]
     36.478
Procedure for challenging arbitrator. (1) Subject to subsection (4)(a) of this section, the parties may
agree on a procedure for challenging an arbitrator.
     (2) Failing any agreement referred to in
subsection (1) of this section, a party which intends to challenge an
arbitrator shall, within 15 days after becoming aware of the constitution of
the arbitral tribunal or after becoming aware of any circumstances referred to
in ORS 36.476 (4) and (5), whichever shall be later, send a written statement
of the reasons for the challenge to the arbitral tribunal.
     (3) Unless the arbitrator challenged under
subsection (2) of this section withdraws from office or the other party agrees
to the challenge, the arbitral tribunal shall decide the challenge.
     (4)(a) If a challenge under any procedure
agreed upon by the parties or under the procedure under subsections (2) and (3)
of this section is not successful, the challenging party may request the
circuit court, within 30 days after having received notice of the decision
rejecting the challenge, to decide on the challenge.
     (b) When the request is made, the circuit
court may refuse to decide on the challenge if it is satisfied that, under the
procedure agreed upon by the parties, the party making the request had an
opportunity to have the challenge decided upon by other than the arbitral
tribunal.
     (c) Notwithstanding paragraph (b) of this
subsection, whether the challenge is under any procedure agreed upon by the
parties or under the procedure under subsections (2) and (3) of this section,
if a challenge is based upon the grounds set forth in ORS 36.476 (1), the
circuit court shall hear the challenge and, if it determines that the facts
support a finding that such ground or grounds fairly exist, then the challenge
shall be sustained.
     (5) The decision of the circuit court
under subsection (4) of this section is final and not subject to appeal.
     (6) While a request under subsection (4)
of this section is pending, the arbitral tribunal, including the challenged
arbitrator, may continue with the arbitral proceedings and make an arbitral
award. [1991 c.405 §16; 1993 c.244 §4]
     36.480
Withdrawal of arbitrator; termination of mandate. (1) If an arbitrator withdraws from the case
or if the parties agree on termination because the arbitrator becomes unable,
de facto or de jure, to perform the functions of the arbitrator or for other
reasons fails to act without undue delay, then the arbitratorÂ’s mandate
terminates.
     (2) If a controversy remains concerning
any of the grounds referred to in subsection (1) of this section, a party may
request the circuit court to decide on the termination of the mandate.
     (3) The decision of the circuit court
under subsection (2) of this section is not subject to appeal.
     (4) If, under this section or ORS 36.478
(3), an arbitrator withdraws from office or a party agrees to the termination
of the mandate of an arbitrator, this does not imply acceptance of the validity
of any ground referred to under this section or under ORS 36.476 (4) and (5). [1991
c.405 §17]
     36.482
Substitute arbitrator; effect of substitution. (1) In addition to the circumstances
referred to under ORS 36.478 and 36.480, the mandate of an arbitrator
terminates upon withdrawal from office for any reason, or by or pursuant to the
agreement of the parties.
     (2) Where the mandate of an arbitrator
terminates, a substitute arbitrator shall be appointed according to the rules
that were applicable to the appointment of the arbitrator being replaced.
     (3) Unless otherwise agreed by the
parties:
     (a) Where the number of arbitrators is
less than three and an arbitrator is replaced, any hearings previously held
shall be repeated.
     (b) Where the presiding arbitrator is
replaced, any hearings previously held shall be repeated.
     (c) Where the number of arbitrators is
three or more and an arbitrator other than the presiding arbitrator is
replaced, any hearings previously held may be repeated at the discretion of the
arbitral tribunal.
     (4) Unless otherwise agreed by the
parties, an order or ruling of the arbitral tribunal made prior to the
replacement of an arbitrator under this section is not invalid because there
has been a change in the composition of the tribunal. [1991 c.405 §18]
     36.484
Arbitral tribunal may rule on own jurisdiction; time for raising issue of
jurisdiction; review by circuit court. (1) The arbitral tribunal may rule on its own jurisdiction, including
any objections with respect to the existence or validity of the arbitration
agreement and, for that purpose, an arbitration clause which forms part of a
contract shall be treated as an agreement independent of the other terms of the
contract. A decision by the arbitral tribunal that the contract is null and
void shall not entail ipso jure the invalidity of the arbitration clause.
     (2) A plea that the arbitral tribunal does
not have jurisdiction shall be raised no later than the submission of the
statement of defense. However, a party is not precluded from raising such a
plea by the fact that the party has appointed, or participated in the
appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding
the scope of its authority shall be raised as soon as the matter alleged to be
beyond the scope of its authority is raised during the arbitral proceedings. In
either case, the arbitral tribunal may admit a later plea if it considers the
delay justified.
     (3) The arbitral tribunal may rule on a
plea referred to in subsection (2) of this section either as a preliminary
question or in an award on the merits. If the arbitral tribunal rules as a
preliminary question that it has jurisdiction, any party shall request the
circuit court, within 30 days after having received notice of that ruling, to
decide the matter or shall be deemed to have waived objection to such finding.
     (4) The decision of the circuit court
under subsection (3) of this section is not subject to appeal.
     (5) While a request under subsection (3)
of this section is pending, the arbitral tribunal may continue with the
arbitral proceedings and make an arbitral award. [1991 c.405 §19; 1993 c.244 §5]
     36.486
Interim measures of protection ordered by arbitral tribunal; security. Unless otherwise agreed by the parties, at
the request of a party, the arbitral tribunal may order any party to take such
interim measure of protection as the arbitral tribunal may consider necessary
in respect to the subject matter of the dispute. The arbitral tribunal may require
any party to provide appropriate security in connection with such measure. [1991
c.405 §20]
     36.488
Fairness in proceedings. The
parties shall be treated with equality and each party shall be given a full
opportunity to present the case of the party. [1991 c.405 §21]
     36.490
Procedures subject to agreement by parties; procedure in absence of agreement. (1) Subject to the provisions of ORS 36.450
to 36.558, the parties are free to agree on the procedure to be followed by the
arbitral tribunal in conducting the proceedings.
     (2) If the parties fail to agree, subject
to the provisions of ORS 36.450 to 36.558, the arbitral tribunal may conduct
the arbitration in such a manner as it considers appropriate.
     (3) The power of the arbitral tribunal
under subsection (2) of this section includes the power to determine the
admissibility, relevance, materiality and weight of any evidence. [1991 c.405 §22]
     36.492
Place of arbitration. (1)
The parties are free to agree on the place of arbitration. If the parties do not
agree, the place of arbitration shall be determined by the arbitral tribunal
or, if any members of the arbitral tribunal are not yet appointed and are to be
appointed by the circuit court as pursuant to ORS 36.474 (4), by the Chief
Justice, taking into account the circumstances of the case, including the
convenience of the parties.
     (2) Notwithstanding the provisions of
subsection (1) of this section, unless otherwise agreed by the parties, the
arbitral tribunal may meet at any place it considers appropriate for
consultation among its members, for hearing witnesses, experts or the parties,
or for the inspection of documents, goods or other property. [1991 c.405 §23]
     36.494
Commencement of arbitral proceedings. Unless otherwise agreed by the parties, the arbitral proceedings in
respect to a particular dispute commence on the date which a request for
referral of that dispute to arbitration is received by the respondent. [1991
c.405 §24]
     36.496
Language used in proceedings.
(1) The parties are free to agree on the language or languages to be used in
the arbitral proceedings. If the parties do not agree, the arbitral tribunal
shall determine the language or languages to be used in the proceedings. Unless
otherwise specified therein, this agreement or determination shall apply to any
written statement by a party, any hearing and any award, decision or other
communication by the arbitral tribunal.
     (2) The arbitral tribunal may order that
any documentary evidence shall be accompanied by a translation into the language
or languages agreed upon by the parties or determined by the arbitral tribunal.
[1991 c.405 §25]
     36.498
Contents of statements by claimant and respondent; amendment or supplement. (1) Within the period of time agreed upon by
the parties or determined by the arbitral tribunal, the claimant shall state
the facts supporting the claim of the claimant, the points at issue, and the
relief or remedy sought, and the respondent shall state the defense of the
respondent in respect of these particulars, unless the parties have otherwise
agreed as to the required elements of those statements.
     (2) The parties may submit with their
statements all documents they consider to be relevant or may add a reference to
the documents or other evidence they will submit.
     (3) Unless otherwise agreed by the
parties, either party may amend or supplement the claim or defense of the party
during the course of the arbitral proceedings, unless the arbitral tribunal
considers it inappropriate to allow the amendment or supplement having regard
to the delay in making it. [1991 c.405 §26]
     36.500
Oral hearing; notice; discovery. (1) Unless otherwise agreed by the parties, the arbitral tribunal
shall decide whether to hold oral hearings for the presentation of evidence or
for oral argument or whether the proceedings shall be conducted on the basis of
documents and other materials.
     (2) Unless the parties have agreed that no
oral hearings shall be held, the arbitral tribunal shall hold oral hearings at
an appropriate stage of the proceedings, if so requested by a party.
     (3) The parties shall be given sufficient
advance notice of any hearing and of any meeting of the arbitral tribunal for
the purpose of the inspection of documents, goods or other property.
     (4) All statements, documents or other
information supplied to, or applications made to, the arbitral tribunal by one
party shall be communicated to the other party. Any expert report or
evidentiary document on which the arbitral tribunal may rely in making its
decision shall be communicated to the parties.
     (5) Unless otherwise agreed by the
parties, all oral hearings and meetings in arbitral proceedings shall be held
in camera. [1991 c.405 §27; 1993 c.244 §6]
     36.502
Effect of failure to make required statement or to appear at oral hearing. (1) Unless otherwise agreed by the parties,
where, without showing sufficient cause, the claimant fails to communicate the
statement of claim of the claimant in accordance with ORS 36.498 (1) and (2),
the arbitral tribunal shall terminate the proceedings.
     (2) Unless otherwise agreed by the
parties, where, without showing sufficient cause, the respondent fails to
communicate the statement of defense of the respondent in accordance with ORS
36.498 (1) and (2), the arbitral tribunal shall continue the proceedings
without treating that failure in itself as an admission of the claimantÂ’s
allegations.
     (3) Unless otherwise agreed by the
parties, where, without showing sufficient cause, a party fails to appear at an
oral hearing or to produce documentary evidence, the arbitral tribunal may
continue with the proceedings and make the arbitral award on the evidence
before it. [1991 c.405 §28]
     36.504
Appointment of experts. (1)
Unless otherwise agreed by the parties, the arbitral tribunal may appoint one
or more experts to report to it on specific issues to be determined by the
arbitral tribunal and require a party to give the expert any relevant
information or to produce, or to provide access to, any relevant documents,
goods or other property for the expertÂ’s inspection.
     (2) Unless otherwise agreed by the
parties, if a party so requests or if the arbitral tribunal considers it
necessary, the expert shall, after delivery of the expertÂ’s written or oral
report, participate in an oral hearing where the parties have the opportunity
to question the expert and to present expert witnesses on the points at issue. [1991
c.405 §29; 1993 c.244 §7]
     36.506
Circuit court assistance in taking evidence; circuit court authorized to enter
certain orders upon application. (1) The arbitral tribunal, or a party with the approval of the
arbitral tribunal, may request from the circuit court assistance in taking
evidence and the court may execute the request within its competence and
according to its rules on taking evidence. In addition, a subpoena may be
issued as provided in ORCP 55, in which case the witness compensation
provisions of ORS chapter 44 shall apply.
     (2) When the parties to two or more
arbitration agreements have agreed in their respective arbitration agreements
or otherwise, the circuit court may, on application by one party with the
consent of all other parties to those arbitration agreements, do one or more of
the following:
     (a) Order the arbitration proceedings
arising out of those arbitration agreements to be consolidated on terms the
court considers just and necessary.
     (b) Where all the parties cannot agree on
an arbitral tribunal for the consolidated arbitration, appoint an arbitral
tribunal in accordance with ORS 36.474 (6).
     (c) Where the parties cannot agree on any
other matter necessary to conduct the consolidated arbitration, make any other
order it considers necessary.
     (d) Order the arbitration proceedings
arising out of those arbitration agreements to be held at the same time or one
immediately after another.
     (e) Order any of the arbitration
proceedings arising out of those arbitration agreements to be stayed until the
determination of any other of them.
     (3) Nothing in this section shall be
construed to prevent the parties to two or more arbitrations from agreeing to
consolidate those arbitrations and taking any steps that are necessary to
effect that consolidation. [1991 c.405 §30; 1993 c.244 §8]
     36.508
Choice of laws. (1) The
arbitral tribunal shall decide the dispute in accordance with the rules of law
designated by the parties as applicable to the substance of the dispute.
     (2) Any designation by the parties of the
law or legal system of a given country or political subdivision thereof shall
be construed, unless otherwise expressed, as directly referring to the
substantive law of that state and not to its conflict of laws rules.
     (3) Failing any designation of the law
under subsection (1) of this section by the parties, the arbitral tribunal
shall apply the rules of law it considers to be appropriate given all the
circumstances surrounding the dispute.
     (4) The arbitral tribunal shall decide ex
aequo et bono or as amiable compositeur if the parties have expressly
authorized it to do so.
     (5) In all cases, the arbitral tribunal
shall decide in accordance with the terms of the contract and shall take into
account the usages of the trade applicable to the transaction. [1991 c.405 §31]
     36.510
Decision of arbitral tribunal.
Unless otherwise agreed by the parties, any decision of the arbitral tribunal
in arbitral proceedings with more than one arbitrator shall be made by a
majority of all its members. However, the parties or all members of the
arbitral tribunal may authorize a presiding arbitrator to decide questions of
procedure. [1991 c.405 §32; 1993 c.244 §9]
     36.512
Settlement. (1) It is not
incompatible with an arbitration agreement for an arbitral tribunal to
encourage settlement of the dispute and, with the agreement of the parties, the
arbitral tribunal may use mediation, conciliation or other procedures at any
time during the arbitral proceedings to encourage settlement. If agreed by the
parties, the members of the arbitral tribunal are not disqualified from
resuming their roles as arbitrators by reason of the mediation, conciliation or
other procedure.
     (2) If, during the arbitral proceedings,
the parties settle the dispute, the arbitral tribunal shall terminate the
proceedings and, if requested by the parties and not objected to by the
arbitral tribunal, record the settlement in the form of an arbitral award on
agreed terms.
     (3) An arbitral award on agreed terms
shall be made in accordance with ORS 36.514 and shall state that it is an
arbitral award.
     (4) An arbitral award on agreed terms has
the same status and effect as any other arbitral award on the substance of the
dispute. [1991 c.405 §33; 1993 c.244 §10]
     36.514
Arbitral award; contents; interim award; award for costs of arbitration. (1) The arbitral award shall be made in
writing and shall be signed by the arbitrator or arbitrators. In arbitral
proceedings with more than one arbitrator, the signatures of the majority of
all the members of the arbitral tribunal shall suffice so long as the reason
for any omitted signature is stated.
     (2) The arbitral award shall state the
reasons upon which it is based, unless the parties have agreed that no reasons
are to be given or the award is an arbitral award on agreed terms under ORS
36.512.
     (3) The arbitral award shall state its
date and the place of arbitration as determined in accordance with ORS 36.492
(1) and the award shall be considered to have been made at that place.
     (4) After the arbitral award is made, a
copy signed by the arbitrators in accordance with subsection (1) of this
section shall be delivered to each party.
     (5) The arbitral tribunal may, at any time
during the arbitral proceedings, make an interim arbitral award on any matter
with respect to which it may make a final arbitral award. The interim award may
be enforced in the same manner as a final arbitral award.
     (6) Unless otherwise agreed by the
parties, the arbitral tribunal may award interest.
     (7)(a) Unless otherwise agreed by the
parties, the costs of an arbitration shall be at the discretion of the arbitral
tribunal.
     (b) In making an order for costs, the
arbitral tribunal may include as costs any of the following:
     (A) The fees and expenses of the
arbitrators and expert witnesses.
     (B) Legal fees and expenses.
     (C) Any administration fees of the
institution supervising the arbitration, if any.
     (D) Any other expenses incurred in
connection with the arbitral proceedings.
     (c) In making an order for costs, the
arbitral tribunal may specify any of the following:
     (A) The party entitled to costs.
     (B) The party who shall pay the costs.
     (C) The amount of costs or the method of
determining that amount.
     (D) The manner in which the costs shall be
paid. [1991 c.405 §34]
     36.516
Termination of arbitral proceedings. (1) The arbitral proceedings are terminated by the final arbitral
award or by an order of the arbitral tribunal in accordance with subsection (2)
of this section. The award shall be final upon the expiration of the applicable
periods in ORS 36.518.
     (2) The arbitral tribunal shall issue an
order for the termination of the arbitral proceedings when:
     (a) The claimant withdraws the claim,
unless the respondent objects thereto and the arbitral tribunal recognizes a
legitimate interest on the part of the respondent in obtaining a final
settlement of the dispute;
     (b) The parties agree on the termination
of the proceedings; or
     (c) The arbitral tribunal finds that the
continuation of the proceedings has for any other reason become unnecessary or
impossible.
     (3) Subject to ORS 36.518 and 36.520 (4),
the mandate of the arbitral tribunal terminates with the termination of the
arbitral proceeding. [1991 c.405 §35; 1993 c.244 §11]
     36.518
Correction of errors in award; interpretation of award; additional award. (1) Within 30 days of receipt of the
arbitral award, unless another period of time has been agreed upon by the
parties:
     (a) A party, with notice to the other
party, may request the arbitral tribunal to correct in the award any errors in
computation, clerical or typographical errors, or errors of similar nature; and
     (b) A party may, if agreed by the parties,
request the arbitral tribunal to give an interpretation of a specific point or
part of the arbitral award.
     (2) If the arbitral tribunal considers any
request made under subsection (1) of this section to be justified, it shall
make the correction or give the interpretation within 30 days of the receipt of
the request. The interpretation shall form part of the arbitral award.
     (3) The arbitral tribunal may correct any
error of the type referred to in subsection (1)(a) of this section on its own
initiative within 30 days of the date of the award.
     (4) Unless otherwise agreed by the
parties, a party, with notice to the other party, may request, within 30 days
of receipt of the award, the arbitral tribunal to make an additional award as
to claims presented in the arbitral proceedings but omitted from the award. If
the arbitral tribunal considers the request to be justified, it shall make the
additional award within 60 days.
     (5) If necessary, the arbitral tribunal
may extend the period of time within which it shall make a correction,
interpretation or an additional award under subsection (1) or (4) of this
section.
     (6) The provisions of ORS 36.514 shall
apply to a correction or interpretation of the award or to an additional award.
[1991 c.405 §36; 1993 c.244 §12]
     36.520
Setting aside award; grounds; time for application; circuit court fees. (1) Recourse to a court against an arbitral
award may only be by an application for setting aside in accordance with
subsections (2) and (3) of this section.
     (2) An arbitral award may be set aside by
the circuit court only if:
     (a) The party making application furnishes
proof that:
     (A) A party to the arbitration agreement
referred to in ORS 36.466 was under some incapacity or that the agreement is
not valid under the law to which the parties have subjected it or, failing any
indication thereon, under the laws of the State of Oregon or the United States;
     (B) The party making the application was
not given proper notice of the appointment of an arbitrator or of the arbitral
proceedings or was otherwise unable to present the partyÂ’s case;
     (C) The award deals with a dispute not
contemplated by or not falling within the terms of the submission to
arbitration or contains decisions on matters beyond the scope of the submission
to arbitration, provided that, if the decisions on matters not submitted to
arbitration can be separated from those not so submitted, only that part of the
award which contains decisions on matters not submitted to arbitration may be
set aside; or
     (D) The composition of the arbitral
tribunal or the arbitral procedure was not in accordance with the agreement of
the parties, unless such agreement was in conflict with a provision of ORS
36.450 to 36.558 from which the parties cannot derogate, or, failing such
agreement, was not in accordance with ORS 36.450 to 36.558; or
     (b) The circuit court finds that:
     (A) The subject matter of the dispute is
not capable of settlement by arbitration under the laws of the State of
     (B) The award is in conflict with the
public policy of the State of
     (3) An application for setting aside may
not be made after three months have elapsed from the date on which the party
making that application had received the award or, if a request had been made
under ORS 36.518, from the date on which that request had been disposed of by
the arbitral tribunal.
     (4) The circuit court, when asked to set
aside an arbitral award, may, where appropriate and so requested by a party,
suspend the setting aside proceedings for a period of time determined by it in
order to give the arbitral tribunal an opportunity to resume the arbitral
proceedings or to take such other action as in the arbitral tribunalÂ’s opinion
will eliminate the grounds for setting aside.
     (5) The clerk of the circuit court shall
collect from the party making application for setting aside under subsection
(1) of this section a filing fee of $39 and from a party filing an appearance
in opposition to the application a filing fee of $39. However, if the
application relates to an arbitral award made following an application or
request to a circuit court under any section of ORS 36.450 to 36.558 in respect
to which the parties have paid filing fees under ORS 21.110, filing fees shall
not be collected under this subsection. An application for setting aside or an
appearance in opposition thereto shall not be deemed filed unless the fee
required by this subsection is paid by the filing party. [1991 c.405 §37; 1993
c.244 §13; 1997 c.801 §55; 2003 c.737 §§41,42; 2005 c.702 §§41,42,43; 2007
c.860 §5]
     Note: Section 15 (11), chapter 860, Oregon Laws
2007, provides:
     Sec.
15. (11) In addition to the
fees provided for in ORS 36.520 (5), for the period commencing September 1,
2007, and ending June 30, 2009, the clerk of the circuit court shall collect
from the party making application for setting aside under ORS 36.520 (1) a
surcharge of $2 and from a party filing an appearance in opposition to the
application a surcharge of $1. [2007 c.860 §15(11)]
     36.522
Enforcement of award; procedure; fee; entry of judgment. (1) An arbitral award, irrespective of the
country in which it was made, shall be recognized as binding and, upon
application in writing to the circuit court, shall be enforced subject to the
provisions of this section and ORS 36.524.
     (2) The party relying on an award or
applying for its enforcement shall supply the authenticated original or a
certified copy of the award and the original or certified copy of the
arbitration agreement referred to in ORS 36.466. If the award or agreement is
not made in the English language, then the party relying on the award or
applying for its enforcement shall supply a duly certified translation thereof
into the English language.
     (3) The party relying on an arbitral award
or applying for its enforcement shall deliver to the clerk of the circuit court
the documents specified in subsection (2) of this section along with proof of
the delivery of a copy of the arbitral award as required by ORS 36.514 (4). The
relying party shall pay to the clerk a filing fee of $25, after which the clerk
shall enter the arbitral award of record in the office of the clerk. If no
application to set aside is filed against the arbitral award as provided in ORS
36.520 within the time specified in ORS 36.520 (3) or, if such an application
is filed, the relying party after the disposition of the application indicates
the intention to still rely on the award or to apply for its enforcement,
judgment shall be entered as upon the verdict of a jury, and execution may
issue thereon, and the same proceedings may be had upon the award with like
effect as upon a verdict in a civil action. [1991 c.405 §38]
     Note: Section 15 (12), chapter 860, Oregon Laws
2007, provides:
     Sec.
15. (12) In addition to the
fee provided for in ORS 36.522 (3), for the period commencing September 1,
2007, and ending June 30, 2009, the clerk of the circuit court shall collect a
surcharge of $1 for the filing of an arbitral award or application for
enforcement of an arbitral award under ORS 36.522. [2007 c.860 §15(12)]
     36.524
Grounds for refusal to enforce award; fee. (1) Recognition or enforcement of an arbitral award, irrespective of
the country in which it was made, may be refused only:
     (a) At the request of the party against whom
it is invoked, if that party pays the clerk of the circuit court a filing fee
of $25 and furnishes to the court where recognition or enforcement is sought
proof that:
     (A) A party to the arbitration agreement
referred to in ORS 36.466 was under some incapacity or that the agreement is
not valid under the law to which the parties have subjected it or under the law
of the country where the award was made;
     (B) The party against whom the award is
invoked was not given proper notice of the appointment of an arbitrator or of
the arbitral proceedings or was otherwise unable to present the partyÂ’s case;
     (C) The arbitral award deals with a
dispute not contemplated by or not falling within the terms of the submission
to arbitration or the award contains decisions on matters beyond the scope of
the submission to arbitration, provided that, if the decisions on matters
submitted to arbitration can be separated from those not so submitted, that
part of the award which contains decisions on matters submitted to arbitration
may be recognized and enforced;
     (D) The composition of the arbitral
tribunal or the arbitral procedure was not in accordance with the agreement of
the parties or, failing such agreement, was not in accordance with the law of
the country where the arbitration took place; or
     (E) The award has not yet become binding
on the parties or has been set aside or suspended by a court of the country in
which, or under the law of which, that award was made; or
     (b) If the court finds that:
     (A) The subject matter of the dispute is
not capable of settlement by arbitration under the laws of the State of
     (B) The recognition or enforcement of the
arbitral award would be contrary to the public policy of the State of
     (2) If an application for setting aside or
suspension of an award has been made to the court referred to in subsection
(1)(a)(E) of this section, and if it considers it proper, the court where
recognition or enforcement is sought may adjourn its decision on application of
the party claiming recognition or enforcement of the award. The court may also
order the other party to provide appropriate security. [1991 c.405 §39]
     Note: Section 15 (13), chapter 860, Oregon Laws
2007, provides:
     Sec.
15. (13) In addition to the
fee provided for in ORS 36.524 (1), for the period commencing September 1,
2007, and ending June 30, 2009, the clerk of the circuit court shall collect a
surcharge of $1 for the filing under ORS 36.524 (1). [2007 c.860 §15(13)]
     36.526
Provisions to be interpreted in good faith. In construing ORS 36.454 to 36.524, a court or arbitral tribunal shall
interpret those sections in good faith, in accordance with the ordinary meaning
to be given to their terms in their context, and in light of their objects and
purposes. Recourse may be had for these purposes, in addition to aids in
interpretation ordinarily available under the laws of this state, to the
documents of the United Nations Commission on International Trade Law and its
working group respecting the preparation of the UNCITRAL Model Law on
International Commercial Arbitration and shall give those documents the weight
that is appropriate in the circumstances. [1991 c.405 §40]
     36.528
Policy to encourage conciliation. It is the policy of the State of
     36.530
Guiding principles of conciliators. The conciliator or conciliators shall be guided by principles of
objectivity, fairness and justice, giving consideration to, among other things,
the rights and obligations of the parties, the usages of the trade concerned
and the circumstances surrounding the dispute, including any previous practices
between the parties. [1991 c.405 §42]
     36.532
Manner of conducting conciliation proceedings. The conciliator or conciliators may conduct
the conciliation proceedings in such a manner as they consider appropriate,
taking into account the circumstances of the case, the wishes of the parties
and the desirability of a speedy settlement of the dispute. Except as otherwise
provided in ORS 36.450 to 36.558, no provision of the Oregon Rules of Civil
Procedure nor any other provision of the Oregon Revised Statutes governing
procedural matters shall apply to any conciliation proceeding brought under ORS
36.450 to 36.558. [1991 c.405 §43]
     36.534
Draft conciliation settlement.
(1) At any time during the proceedings, the conciliator or conciliators may
prepare a draft conciliation settlement which may include the assessment and
apportionment of costs between the parties and send copies to the parties,
specifying the time within which the parties must signify their approval.
     (2) No party may be required to accept any
settlement proposed by the conciliator or conciliators. [1991 c.405 §44]
     36.536
Prohibition on use of statements, admissions or documents arising out of
conciliation proceedings.
When the parties agree to participate in conciliation under ORS 36.450 to
36.558:
     (1) Evidence of anything said or of any
admission made in the course of the conciliation is not admissible in evidence
and disclosure of any such evidence shall not be compelled in any civil action
in which, pursuant to law, testimony may be compelled to be given. However,
this subsection does not limit the admissibility of evidence if all parties participating
in conciliation consent, in writing, to its disclosure, provided that such
consent is given after the statement or admission to be disclosed is made in
the conciliation proceeding.
     (2) In the event that any such evidence is
offered in contravention of this section, the arbitration tribunal or the court
shall make any order which it considers to be appropriate to deal with the
matter, including, without limitation, orders restricting the introduction of
evidence, or dismissing the case without prejudice.
     (3) Unless the document otherwise
provides, no document prepared for the purpose of, or in the course of, or
pursuant to, the conciliation, or any copy thereof, is admissible in evidence
and disclosure of any such document shall not be compelled in any arbitration
or civil action in which, pursuant to law, testimony may be compelled to be
given. [1991 c.405 §45; 1993 c.244 §14]
     36.538
Conciliation to act as stay of other proceedings; tolling of limitation periods
during conciliation. (1) The
agreement of the parties to submit a dispute to conciliation shall be deemed an
agreement between or among those parties to stay all judicial or arbitral
proceedings from the commencement of conciliation until the termination of
conciliation proceedings.
     (2) All applicable limitation periods,
including periods of prescription, shall be tolled or extended upon the
commencement of conciliation proceedings to conciliate a dispute under ORS
36.450 to 36.558 and all limitation periods shall remain tolled and periods of
prescription extended as to all parties to the conciliation proceedings until
the 10th day following the termination of conciliation proceedings.
     (3) For purposes of this section,
conciliation proceedings are deemed to have commenced as soon as:
     (a) A party has requested conciliation of
a particular dispute or disputes; and
     (b) The other party or parties agree to
participate in the conciliation proceeding. [1991 c.405 §46]
     36.540
Termination of conciliation proceedings. (1) The conciliation proceedings may be terminated as to all parties
by any of the following:
     (a) A written declaration of the
conciliator or conciliators, after consultation with the parties, to the effect
that further efforts at conciliation are no longer justified, on the date of
the declaration.
     (b) A written declaration of the parties
addressed to the conciliator or conciliators to the effect that the
conciliation proceedings are terminated, on the date of the declaration.
     (c) The signing of a settlement agreement
by all of the parties, on the date of the agreement.
     (2) The conciliation proceedings may be
terminated as to particular parties by either of the following:
     (a) A written declaration of a party to
the other party or parties and the conciliator or conciliators, if appointed,
to the effect that the conciliation proceedings shall be terminated as to that
particular party, on the date of the declaration.
     (b) The signing of a settlement agreement
by some of the parties, on the date of the agreement. [1991 c.405 §47; 1993
c.244 §15]
     36.542
Conciliator not to be arbitrator or take part in arbitral or judicial proceedings. No person who has served as conciliator may
be appointed as an arbitrator for, or take part in, any arbitral or judicial
proceedings in the same dispute unless all parties manifest their consent to
such participation or the rules adopted for conciliation or arbitration
otherwise provide. [1991 c.405 §48]
     36.544
Submission to conciliation not waiver. By submitting to conciliation, no party shall be deemed to have waived
any rights or remedies which that party would have had if conciliation had not
been initiated, other than those set forth in any settlement agreement which
results from the conciliation. [1991 c.405 §49]
     36.546
Conciliation agreement to be treated as arbitral award. If the conciliation succeeds in settling the
dispute and the result of the conciliation is reduced to writing and signed by
the conciliator or conciliators and the parties or their representatives, the
written agreement shall be treated as an arbitral award rendered by an arbitral
tribunal duly constituted in and pursuant to the laws of this state and shall
have the same force and effect as a final award in arbitration. [1991 c.405 §50]
     36.548
Costs of conciliation proceedings. Upon termination of the conciliation proceedings, the conciliator or
conciliators shall fix the costs of the conciliation and give written notice
thereof to the parties. As used in this section and in ORS 36.550, “costs”
includes only the following:
     (1) A reasonable fee to be paid to the
conciliator or conciliators.
     (2) The travel and other reasonable
expenses of the conciliator or conciliators.
     (3) The travel and other reasonable
expenses of witnesses requested by the conciliator or conciliators with the
consent of the parties.
     (4) The cost of any expert advice
requested by the conciliator or conciliators with the consent of the parties.
     (5) The cost of any court. [1991 c.405 §51]
     36.550
Payment of costs. The costs
fixed by the conciliator or conciliators as pursuant to ORS 36.548 shall be
borne equally by the parties unless the settlement agreement provides for a
different apportionment. All other expenses incurred by a party shall be borne
by that party. [1991 c.405 §52]
     36.552
Effect of conciliation on jurisdiction of courts. Neither the request for conciliation, the
consent to participate in the conciliation proceeding, the participation in
such proceedings, nor the entering into a conciliation agreement or settlement,
shall be deemed as consent to the jurisdiction of any court in this state in
the event conciliation fails. [1991 c.405 §53]
     36.554
Immunities. (1) Neither the
arbitrator or arbitrators, the conciliator or conciliators, the parties, nor
their representatives, shall be subject to service of process on any civil
matter while they are present in this state for the purpose of arranging for or
participating in any arbitration or conciliation proceedings subject to ORS
36.450 to 36.558.
     (2) No person who serves as an arbitrator
or as a conciliator shall be held liable in an action for damages resulting
from any act or omission in the performance of their role as an arbitrator or
as a conciliator in any proceeding subject to ORS 36.450 to 36.558. [1991 c.405
§54; 1993 c.244 §16]
     36.556
Severability. If any
provision of ORS 36.450 to 36.558 or its application to any person or
circumstance is held to be invalid, the invalidity does not affect the other
provisions or applications of ORS 36.450 to 36.558 which can be given effect
without the invalid provision or application and to this end the provisions of
ORS 36.450 to 36.558 are severable. [1991 c.405 §55]
     36.558
Short title. ORS 36.450 to
36.558 shall be known and may be cited as the “Oregon International Commercial
Arbitration and Conciliation Act.” [1991 c.405 §1]
UNIFORM
ARBITRATION ACT
     36.600
Definitions. As used in ORS
36.600 to 36.740:
     (1) “Arbitration organization” means an
association, agency, board, commission or other entity that is neutral and
initiates, sponsors or administers an arbitration proceeding or is involved in
the appointment of an arbitrator.
     (2) “Arbitrator” means an individual
appointed to render an award, alone or with others, in a controversy that is
subject to an agreement to arbitrate.
     (3) “Court” means a circuit court.
     (4) “Knowledge” means actual knowledge.
     (5) “Person” means an individual,
corporation, business trust, estate, trust, partnership, limited liability
company, association, joint venture, government, governmental subdivision,
agency or instrumentality, public corporation or any other legal or commercial
entity.
     (6) “Record” means information that is
inscribed on a tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form. [2003 c.598 §1]
     Note: Sections 3 and 31, chapter 598, Oregon Laws
2003, provide:
     Sec.
3. (1) Sections 1 to 30 of
this 2003 Act [36.600 to 36.740] govern an agreement to arbitrate made on or
after the effective date of this 2003 Act [January 1, 2004].
     (2) Sections 1 to 30 of this 2003 Act
govern an agreement to arbitrate made before the effective date of this 2003
Act if all the parties to the agreement or to the arbitration proceeding so
agree in a record.
     (3) On or after September 1, 2004,
sections 1 to 30 of this 2003 Act govern an agreement to arbitrate whenever
made. [2003 c.598 §3]
     Sec.
31. ORS 36.600 to 36.740 do
not affect an action or proceeding commenced or right accrued before January 1,
2004. Subject to section 3, chapter 598, Oregon Laws 2003, an arbitration
agreement made before January 1, 2004, continues to be governed by ORS 36.300
to 36.365 as though those sections were not repealed by section 57, chapter
598, Oregon Laws 2003. [2003 c.598 §31; 2005 c.22 §30]
     Note: 36.600 to 36.740 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter 36
or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     36.605
Notice. (1) Except as
otherwise provided in ORS 36.600 to 36.740, a person gives notice to another
person by taking action that is reasonably necessary to inform the other person
in ordinary course, whether or not the other person acquires knowledge of the
notice.
     (2) A person has notice if the person has knowledge
of the notice or has received notice.
     (3) A person receives notice when it comes
to the personÂ’s attention or the notice is delivered at the personÂ’s place of
residence or place of business, or at another location held out by the person
as a place of delivery of such communications. [2003 c.598 §2]
     Note: See notes under 36.600.
     36.610
Effect of agreement to arbitrate; nonwaivable provisions. (1) Except as otherwise provided in this
section, a party to an agreement to arbitrate or to an arbitration proceeding
may waive, or the parties may vary the effect of, the requirements of ORS
36.600 to 36.740 to the extent permitted by law.
     (2) Before a controversy arises that is
subject to an agreement to arbitrate, a party to the agreement may not:
     (a) Waive or agree to vary the effect of
the requirements of this section or ORS 36.615 (1), 36.620 (1), 36.630, 36.675
(1) or (2), 36.720 or 36.730;
     (b) Agree to unreasonably restrict the
right under ORS 36.635 to notice of the initiation of an arbitration
proceeding;
     (c) Agree to unreasonably restrict the
right under ORS 36.650 to disclosure of any facts by a neutral arbitrator; or
     (d) Waive the right under ORS 36.670 of a
party to an agreement to arbitrate to be represented by a lawyer at any
proceeding or hearing under ORS 36.600 to 36.740, but an employer and a labor
organization may waive the right to representation by a lawyer in a labor
arbitration.
     (3) A party to an agreement to arbitrate
or arbitration proceeding may not waive, or the parties may not vary the effect
of, the requirements of this section or ORS 36.625, 36.660, 36.680, 36.690 (4)
or (5), 36.700, 36.705, 36.710, 36.715 (1) or (2), 36.735 or 36.740 or section
3 (1) or (3) or 31, chapter 598, Oregon Laws 2003.
     (4) Subsections (2) and (3) of this
section do not apply to agreements to arbitrate entered into by two or more
insurers, as defined by ORS 731.106, or self-insured persons for the purpose of
arbitration of disputes arising out of the provision of insurance. [2003 c.598 §4]
     Note: See notes under 36.600.
     36.615
Application for judicial relief; fees. (1)(a) Except as otherwise provided in ORS 36.730, an application for
judicial relief under ORS 36.600 to 36.740 must be made by petition to the
court. Except as otherwise provided in this subsection, a person filing the
first petition relating to an agreement to arbitrate or relating to an
arbitration proceeding must pay the filing fee provided by ORS 21.110 (1) for
plaintiffs, and persons responding to the petition must pay the filing fee
provided by ORS 21.110 (1) for defendants. If subsequent petitions are filed
relating to the same agreement to arbitrate or arbitration proceeding, no
additional filing fees shall be required of the parties.
     (b) If the first petition relating to an
arbitration proceeding is a petition to seek confirmation, vacation,
modification or correction of an award under ORS 36.700, 36.705 or 36.710, the
person filing the petition must pay a fee of $39, and a person filing an
appearance in opposition to the petition must pay a filing fee of $39.
     (c) If a civil action is pending relating
to the same dispute that is the subject of the arbitration, and filing fees
were paid for that action under ORS 21.110, filing fees may not be charged
under this subsection for the filing of any petition under ORS 36.600 to
36.740.
     (2) Unless a civil action involving the
agreement to arbitrate is pending, notice of a first petition to the court
under ORS 36.600 to 36.740, must be served in the manner provided by ORCP 7 D.
Otherwise, notice of the petition must be given in the manner provided by ORCP
9. [2003 c.598 §5; 2003 c.737 §§40a,40c; 2005 c.702 §§45,46,47; 2007 c.860 §6]
     Note: Section 15 (14), chapter 860, Oregon Laws
2007, provides:
     Sec.
15. (14) In addition to the
fee provided for in ORS 36.615 (1)(b), for the period commencing September 1,
2007, and ending June 30, 2009, the clerk of the circuit court shall collect a
surcharge of $2 upon the filing of a petition to seek confirmation, vacation,
modification or correction of an award under ORS 36.700, 36.705 or 36.710, and
a surcharge of $1 from a person filing an appearance in opposition to the
petition. [2007 c.860 §15(14)]
     Note: See notes under 36.600.
     36.620
Validity of agreement to arbitrate. (1) An agreement contained in a record to submit to arbitration any
existing or subsequent controversy arising between the parties to the agreement
is valid, enforceable and irrevocable except upon a ground that exists at law
or in equity for the revocation of a contract.
     (2) Subject to ORS 36.625 (8), the court
shall decide whether an agreement to arbitrate exists or a controversy is
subject to an agreement to arbitrate.
     (3) An arbitrator shall decide whether a
condition precedent to arbitrability has been fulfilled.
     (4) If a party to a judicial proceeding
challenges the existence of, or claims that a controversy is not subject to, an
agreement to arbitrate, the arbitration proceeding may continue pending final
resolution of the issue by the court, unless the court otherwise orders.
     (5) A written arbitration agreement
entered into between an employer and employee and otherwise valid under
subsection (1) of this section is voidable and may not be enforced by a court
unless:
     (a) The employer informs the employee in a
written employment offer received by the employee at least two weeks before the
first day of the employeeÂ’s employment that an arbitration agreement is
required as a condition of employment; or
     (b) The arbitration agreement is entered
into upon a subsequent bona fide advancement of the employee by the employer. [2003
c.598 §6; 2007 c.902 §1]
     Note: Section 4, chapter 902, Oregon Laws 2007,
provides:
     Sec.
4. The amendments to ORS
36.620 by section 1 of this 2007 Act apply to arbitration agreements entered
into on or after the effective date of this 2007 Act [January 1, 2008]. [2007
c.902 §4]
     Note: See notes under 36.600.
     36.625
Petition to compel or stay arbitration. (1) On petition of a person showing an agreement to arbitrate and
alleging another personÂ’s refusal to arbitrate pursuant to the agreement:
     (a) If the refusing party does not appear
or does not oppose the petition, the court shall order the parties to
arbitrate; and
     (b) If the refusing party opposes the
petition, the court shall proceed summarily to decide the issue as provided in
subsection (8) of this section and order the parties to arbitrate unless it
finds that there is no enforceable agreement to arbitrate.
     (2) On petition of a person alleging that
an arbitration proceeding has been initiated or threatened but that there is no
agreement to arbitrate, the court shall proceed summarily to decide the issue
as provided in subsection (8) of this section. If the court finds that there is
an enforceable agreement to arbitrate, it shall order the parties to arbitrate.
     (3) If the court finds that there is no
enforceable agreement to arbitrate, it may not order the parties to arbitrate
pursuant to subsection (1) or (2) of this section.
     (4) The court may not refuse to order
arbitration because the claim subject to arbitration lacks merit or grounds for
the claim have not been established.
     (5) If a proceeding involving a claim
referable to arbitration under an alleged agreement to arbitrate is pending in
court, a petition under this section must be made in that court. Otherwise, a
petition under this section may be made in any court as provided in ORS 36.725.
     (6) If a party makes a petition to the
court to order arbitration, the court on just terms shall stay any judicial
proceeding that involves a claim alleged to be subject to the arbitration until
the court renders a final decision under this section.
     (7) If the court orders arbitration, the
court on just terms shall stay any judicial proceeding that involves a claim
subject to the arbitration. If a claim subject to the arbitration is severable,
the court may limit the stay to that claim.
     (8) A judge shall decide all issues raised
under a petition filed under ORS 36.600 to 36.740 unless there is a
constitutional right to jury trial on the issue. If there is a constitutional
right to jury trial on an issue, the issue shall be tried to a jury upon the
request of any party to the proceeding. [2003 c.598 §7]
     Note: See notes under 36.600.
     36.630
Provisional remedies. (1)
Before an arbitrator is appointed and is authorized and able to act, the court,
upon petition of a party to an arbitration proceeding and for good cause shown,
may enter an order for provisional remedies to protect the effectiveness of the
arbitration proceeding to the same extent and under the same conditions as if
the controversy were the subject of a civil action.
     (2) After an arbitrator is appointed and
is authorized and able to act:
     (a) The arbitrator may issue such orders
for provisional remedies, including interim awards, as the arbitrator finds
necessary to protect the effectiveness of the arbitration proceeding and to
promote the fair and expeditious resolution of the controversy, to the same
extent and under the same conditions as if the controversy were the subject of
a civil action; and
     (b) A party to an arbitration proceeding
may move the court for a provisional remedy only if the matter is urgent and
the arbitrator is not able to act timely or the arbitrator cannot provide an
adequate remedy.
     (3) A party does not waive a right of
arbitration by making a petition under subsection (1) or (2) of this section. [2003
c.598 §8]
     Note: See notes under 36.600.
     36.635
Initiation of arbitration.
(1) A person initiates an arbitration proceeding by giving notice in a record
to the other parties to the agreement to arbitrate in the agreed manner between
the parties or, in the absence of agreement, by certified mail, return receipt
requested and obtained, or by service as authorized for summons under ORCP 7 D.
The notice must describe the nature of the controversy and the remedy sought.
     (2) Unless a person objects for lack or
insufficiency of notice under ORS 36.665 (3) not later than the beginning of
the arbitration hearing, the person by appearing at the hearing waives any
objection to lack or insufficiency of notice. [2003 c.598 §9]
     Note: See notes under 36.600.
     36.640
Consolidation of separate arbitration proceedings. (1) Except as otherwise provided in
subsection (3) of this section, upon petition of a party to an agreement to
arbitrate or to an arbitration proceeding, the court may order consolidation of
separate arbitration proceedings as to all or some of the claims if:
     (a) There are separate agreements to
arbitrate or separate arbitration proceedings between the same persons or one
of them is a party to a separate agreement to arbitrate or a separate
arbitration proceeding with a third person;
     (b) The claims subject to the agreements
to arbitrate arise in substantial part from the same transaction or series of
related transactions;
     (c) The existence of a common issue of law
or fact creates the possibility of conflicting decisions in the separate
arbitration proceedings; and
     (d) Prejudice resulting from a failure to
consolidate is not outweighed by the risk of undue delay or prejudice to the
rights of or hardship to parties opposing consolidation.
     (2) The court may order consolidation of
separate arbitration proceedings as to some claims and allow other claims to be
resolved in separate arbitration proceedings.
     (3) The court may not order consolidation
of the claims of a party to an agreement to arbitrate if the agreement
prohibits consolidation. [2003 c.598 §10]
     Note: See notes under 36.600.
     36.645
Appointment of arbitrator; service as neutral arbitrator. (1) If the parties to an agreement to
arbitrate agree on a method for appointing an arbitrator, that method must be
followed, unless the method fails. If the parties have not agreed on a method,
the agreed method fails, or an arbitrator designated or appointed fails or is
unable to act and a successor has not been appointed, the court, on petition of
a party to the arbitration proceeding, shall appoint the arbitrator. An
arbitrator so appointed has all the powers of an arbitrator designated in the
agreement to arbitrate or appointed pursuant to the agreed method.
     (2) An individual who has a known, direct
and material interest in the outcome of the arbitration proceeding or a known,
existing and substantial relationship with a party may not serve as an
arbitrator required by an agreement to be neutral. [2003 c.598 §11]
     Note: See notes under 36.600.
     36.650
Disclosure by arbitrator.
(1) Before accepting appointment, an individual who is requested to serve as an
arbitrator, after making a reasonable inquiry, shall disclose to all parties to
the agreement to arbitrate and arbitration proceeding and to any other
arbitrators in the arbitration proceeding any known facts that a reasonable
person would consider likely to affect the impartiality of the arbitrator in
the arbitration proceeding, including:
     (a) A financial or personal interest in
the outcome of the arbitration proceeding; and
     (b) An existing or past relationship with
any of the parties to the agreement to arbitrate or the arbitration proceeding,
their counsel or representatives, a witness or another arbitrator in the
proceeding.
     (2) An arbitrator has a continuing
obligation to disclose to all parties to the agreement to arbitrate and
arbitration proceeding and to any other arbitrators in the proceeding any facts
that the arbitrator learns after accepting appointment that a reasonable person
would consider likely to affect the impartiality of the arbitrator.
     (3) If an arbitrator discloses a fact
required by subsection (1) or (2) of this section to be disclosed and a party
timely objects to the appointment or continued service of the arbitrator based
upon the fact disclosed, the objection may be a ground under ORS 36.705 (1)(b)
for vacating an award made by the arbitrator.
     (4) If the arbitrator did not disclose a
fact as required by subsection (1) or (2) of this section, upon timely
objection by a party, the court under ORS 36.705 (1)(b) may vacate an award.
     (5) An arbitrator appointed as a neutral
arbitrator who does not disclose a known, direct and material interest in the
outcome of the arbitration proceeding or a known, existing and substantial
relationship with a party, the partyÂ’s counsel or representatives, a witness or
another arbitrator in the proceeding is presumed to act with evident partiality
under ORS 36.705 (1)(b).
     (6) If the parties to an arbitration
proceeding agree to the procedures of an arbitration organization or any other
procedures for challenges to arbitrators before an award is made, substantial
compliance with those procedures is a condition precedent to a petition to
vacate an award on that ground under ORS 36.705 (1)(b). [2003 c.598 §12]
     Note: See notes under 36.600.
     36.655
Action by majority. If there
is more than one arbitrator, the powers of an arbitrator must be exercised by a
majority of the arbitrators, but all of them shall conduct the hearing under
ORS 36.665 (3). [2003 c.598 §13]
     Note: See notes under 36.600.
     36.660
Immunity of arbitrator; competency to testify; attorney fees and costs. (1) An arbitrator or an arbitration
organization acting in that capacity is immune from civil liability to the same
extent as a judge of a court of this state acting in a judicial capacity.
     (2) The immunity afforded by this section
supplements any immunity under other law.
     (3) The failure of an arbitrator to make a
disclosure required by ORS 36.650 does not cause any loss of immunity under
this section.
     (4) In a judicial, administrative or
similar proceeding, an arbitrator or representative of an arbitration
organization is not competent to testify, and may not be required to produce
records as to any statement, conduct, decision or ruling occurring during the
arbitration proceeding, to the same extent as a judge of a court of this state
acting in a judicial capacity. This subsection does not apply:
     (a) To the extent necessary to determine
the claim of an arbitrator, arbitration organization or representative of the
arbitration organization against a party to the arbitration proceeding; or
     (b) To a hearing on a petition to vacate
an award under ORS 36.705 (1)(a) or (b) if the petitioner establishes prima
facie that a ground for vacating the award exists.
     (5) If a person commences a civil action
against an arbitrator, arbitration organization or representative of an
arbitration organization arising from the services of the arbitrator,
organization or representative, or if a person seeks to compel an arbitrator or
a representative of an arbitration organization to testify or produce records
in violation of subsection (4) of this section, and the court decides that the
arbitrator, arbitration organization or representative of an arbitration
organization is immune from civil liability or that the arbitrator or
representative of the organization is not competent to testify, the court shall
award to the arbitrator, organization or representative reasonable attorney
fees. [2003 c.598 §14]
     Note: See notes under 36.600.
     36.665
Arbitration process. (1) An
arbitrator may conduct an arbitration in such manner as the arbitrator
considers appropriate for a fair and expeditious disposition of the proceeding.
The authority conferred upon the arbitrator includes the power to hold
conferences with the parties to the arbitration proceeding before the hearing
and, among other matters, determine the admissibility, relevance, materiality
and weight of any evidence.
     (2) An arbitrator may decide a request for
summary disposition of a claim or particular issue:
     (a) If all interested parties agree; or
     (b) Upon request of one party to the
arbitration proceeding, if that party gives notice to all other parties to the
proceeding and the other parties have a reasonable opportunity to respond.
     (3) If an arbitrator orders a hearing, the
arbitrator shall set a time and place and give notice of the hearing not less
than five days before the hearing begins. Unless a party to the arbitration
proceeding makes an objection to lack or insufficiency of notice not later than
the beginning of the hearing, the partyÂ’s appearance at the hearing waives any
objection based on lack or insufficiency of notice. Upon request of a party to
the arbitration proceeding and for good cause shown, or upon the arbitratorÂ’s
own initiative, the arbitrator may adjourn the hearing from time to time as
necessary but may not postpone the hearing to a time later than that fixed by
the agreement to arbitrate for making the award unless the parties to the
arbitration proceeding consent to a later date. The arbitrator may hear and
decide the controversy upon the evidence produced although a party who was duly
notified of the arbitration proceeding did not appear. The court, on request,
may direct the arbitrator to conduct the hearing promptly and render a timely
decision.
     (4) At a hearing under subsection (3) of
this section, a party to the arbitration proceeding has a right to be heard, to
present evidence material to the controversy and to cross-examine witnesses
appearing at the hearing.
     (5) If an arbitrator ceases or is unable
to act during the arbitration proceeding, a replacement arbitrator must be
appointed in accordance with ORS 36.645 to continue the proceeding and to
resolve the controversy. [2003 c.598 §15]
     Note: See notes under 36.600.
     36.670
Representation by a lawyer; representation of legal or commercial entities. A party to an arbitration proceeding may be
represented by a lawyer admitted to practice in this state or any other state.
A corporation, business trust, partnership, limited liability company,
association, joint venture or other legal or commercial entity may be
represented by a lawyer admitted to practice in this state or any other state,
by an officer of the entity, or by an employee or other agent authorized by the
entity to represent the entity in the proceeding. [2003 c.598 §16]
     Note: See notes under 36.600.
     36.675
Witnesses; subpoenas; depositions; discovery. (1) An arbitrator may administer oaths. An arbitrator or an attorney
for any party to the arbitration proceeding may issue a subpoena for the
attendance of a witness and for the production of records and other evidence at
any hearing. A subpoena must be served in the manner for service of subpoenas
under ORCP 55 D and, upon petition to the court by a party to the arbitration
proceeding or the arbitrator, enforced in the manner provided by ORCP 55 G.
     (2) In order to make the proceedings fair,
expeditious and cost-effective, upon request of a party to or a witness in an
arbitration proceeding, an arbitrator may permit a deposition of any witness to
be taken for use as evidence at the hearing, including a witness who cannot be
subpoenaed for or is unable to attend a hearing. The arbitrator shall determine
the conditions under which the deposition is taken.
     (3) An arbitrator may permit such
discovery as the arbitrator decides is appropriate in the circumstances, taking
into account the needs of the parties to the arbitration proceeding and other
affected persons and the desirability of making the proceeding fair,
expeditious and cost-effective.
     (4) If an arbitrator permits discovery
under subsection (3) of this section, the arbitrator may order a party to the
arbitration proceeding to comply with the arbitratorÂ’s discovery-related
orders, issue subpoenas for the attendance of a witness and for the production
of records and other evidence at a discovery proceeding, and take action
against a noncomplying party to the extent a court could if the controversy
were the subject of a civil action in this state.
     (5) An arbitrator may issue a protective
order to prevent the disclosure of privileged information, confidential information,
trade secrets and other information protected from disclosure to the extent a
court could if the controversy were the subject of a civil action in this
state.
     (6) All laws compelling a person under
subpoena to testify and all fees for attending a judicial proceeding, a
deposition or a discovery proceeding as a witness apply to an arbitration
proceeding as if the controversy were the subject of a civil action in this
state.
     (7) The court may enforce a subpoena or
discovery-related order for the attendance of a witness within this state, and
for the production of records and other evidence issued by an arbitrator or by
an attorney for any party to the proceeding in connection with an arbitration
proceeding in another state, upon conditions determined by the court so as to
make the arbitration proceeding fair, expeditious and cost-effective. A
subpoena or discovery-related order issued by an arbitrator or by an attorney
for any party to the proceeding in another state must be served in the manner
provided by ORCP 55 D for service of subpoenas in a civil action in this state
and, upon petition to the court by a party to the arbitration proceeding or the
arbitrator, enforced in the manner provided by ORCP 55 G for enforcement of
subpoenas in a civil action in this state. [2003 c.598 §17]
     Note: See notes under 36.600.
     36.680
Judicial enforcement of preaward ruling by arbitrator. If an arbitrator makes a preaward ruling in
favor of a party to the arbitration proceeding, the party may request the
arbitrator to incorporate the ruling into an award under ORS 36.685. A
prevailing party may make a petition to the court for an expedited order to
confirm the award under ORS 36.700, in which case the court shall summarily
decide the petition. The court shall issue an order to confirm the award unless
the court vacates, modifies, or corrects the award under ORS 36.705 or 36.710. [2003
c.598 §18]
     Note: See notes under 36.600.
     36.685
Award. (1) An arbitrator
shall make a record of an award. The record must be signed or otherwise
authenticated by any arbitrator who concurs with the award. If the award
requires the payment of money, including but not limited to payment of costs or
attorney fees, the award must be accompanied by a separate statement that
contains the information required by ORS 18.042 for judgments that include
money awards. The arbitrator or the arbitration organization shall give notice
of the award, including a copy of the award, to each party to the arbitration
proceeding.
     (2) An award must be made within the time
specified by the agreement to arbitrate or, if not specified therein, within
the time ordered by the court. The court may extend or the parties to the
arbitration proceeding may agree in a record to extend the time. The court or
the parties may extend the time within or after the time specified or ordered.
A party waives any objection that an award was not timely made unless the party
gives notice of the objection to the arbitrator before receiving notice of the
award. [2003 c.598 §19; 2003 c.576 §169a]
     Note: See notes under 36.600.
     36.690
Change of award by arbitrator.
(1) Upon request by a party to an arbitration proceeding, an arbitrator may
modify or correct an award:
     (a) Upon a ground stated in ORS 36.710
(1)(a) or (c);
     (b) Because the arbitrator has not made a
final and definite award upon a claim submitted by the parties to the
arbitration proceeding; or
     (c) To clarify the award.
     (2) A request under subsection (1) of this
section must be made and notice given to all parties within 20 days after the
requesting party receives notice of the award.
     (3) A party to the arbitration proceeding
must give notice of any objection to the request within 10 days after receipt
of the notice under subsection (2) of this section.
     (4) If a petition to the court is pending
under ORS 36.700, 36.705 or 36.710, the court may submit the claim to the
arbitrator to consider whether to modify or correct the award:
     (a) Upon a ground stated in ORS 36.710
(1)(a) or (c);
     (b) Because the arbitrator has not made a
final and definite award upon a claim submitted by the parties to the
arbitration proceeding; or
     (c) To clarify the award.
     (5) An award modified or corrected
pursuant to this section is subject to ORS 36.685 (1), 36.700, 36.705 and
36.710. [2003 c.598 §20]
     Note: See notes under 36.600.
     36.695
Remedies; fees and expenses of arbitration proceeding. (1) An arbitrator may award punitive damages
or other exemplary relief if such an award is authorized by law in a civil
action involving the same claim and the evidence produced at the hearing
justifies the award under the legal standards otherwise applicable to the
claim.
     (2) An arbitrator may award reasonable
attorney fees and other reasonable expenses of arbitration as may be specified
in the arbitration agreement if such an award is authorized by law in a civil
action involving the same claim or by the agreement of the parties to the
arbitration proceeding.
     (3) As to all remedies other than those
authorized by subsections (1) and (2) of this section, an arbitrator may order
such remedies as the arbitrator considers just and appropriate under the
circumstances of the arbitration proceeding. The fact that such a remedy could
not or would not be granted by the court is not a ground for refusing to confirm
an award under ORS 36.700 or for vacating an award under ORS 36.705.
     (4) An arbitrator’s expenses and fees,
together with other expenses, must be paid as provided in the award.
     (5) If an arbitrator awards punitive
damages or other exemplary relief under subsection (1) of this section, the
arbitrator shall specify in the award the basis in fact justifying and the
basis in law authorizing the award and state separately the amount of the
punitive damages or other exemplary relief. [2003 c.598 §21]
     Note: See notes under 36.600.
     36.700
Confirmation of award. (1)
After a party to an arbitration proceeding receives notice of an award, the
party may make a petition to the court for an order confirming the award. The
party filing the petition must serve a copy of the petition on all other
parties to the proceedings. The court shall issue a confirming order unless
within 20 days after the petition is served on the other parties:
     (a) A party requests that the arbitrator
modify or correct the award under ORS 36.690; or
     (b) A party petitions the court to vacate,
modify or correct the award under ORS 36.705 or 36.710.
     (2) If a party requests that the
arbitrator modify or correct the award under ORS 36.690, or petitions the court
to vacate, modify or correct the award under ORS 36.705 or 36.710, the court
may stay entry of an order on a petition filed under this section until a final
decision is made on the request or petition. [2003 c.598 §22]
     Note: See notes under 36.600.
     36.705
Vacating award. (1) Upon petition
to the court by a party to an arbitration proceeding, the court shall vacate an
award made in the arbitration proceeding if:
     (a) The award was procured by corruption,
fraud or other undue means;
     (b) There was:
     (A) Evident partiality by an arbitrator
appointed as a neutral arbitrator;
     (B) Corruption by an arbitrator; or
     (C) Misconduct by an arbitrator
prejudicing the rights of a party to the arbitration proceeding;
     (c) An arbitrator refused to postpone the
hearing upon showing of sufficient cause for postponement, refused to consider
evidence material to the controversy or otherwise conducted the hearing
contrary to ORS 36.665 so as to prejudice substantially the rights of a party
to the arbitration proceeding;
     (d) An arbitrator exceeded the arbitrator’s
powers;
     (e) There was no agreement to arbitrate,
unless the person participated in the arbitration proceeding without raising an
objection under ORS 36.665 (3) not later than the beginning of the arbitration
hearing; or
     (f) The arbitration was conducted without
proper notice of the initiation of an arbitration as required in ORS 36.635 so
as to prejudice substantially the rights of a party to the arbitration
proceeding.
     (2) A petition under this section must be
filed within 20 days after the petitioner is served with a petition for
confirmation of an award under ORS 36.700, unless the petitioner alleges that
the award was procured by corruption, fraud or other undue means. If the
petitioner alleges that the award was procured by corruption, fraud or other
undue means, a petition under this section must be filed within 90 days after
the grounds for challenging the award are known or, by the exercise of
reasonable care, would have been known by the petitioner. A party filing a
petition under this section must serve a copy of the petition on all other
parties to the proceedings.
     (3) If the court vacates an award on a
ground other than that set forth in subsection (1)(e) of this section, it may
order a rehearing. If the award is vacated on a ground stated in subsection
(1)(a) or (b) of this section, the rehearing must be before a new arbitrator.
If the award is vacated on a ground stated in subsection (1)(c), (d) or (f) of
this section, the rehearing may be before the arbitrator who made the award or
before any successor appointed for that arbitrator. The arbitrator must render
the decision in the rehearing within the same time as that provided for an
award in ORS 36.685 (2).
     (4) If the court denies a petition to
vacate an award, it shall confirm the award unless a petition to modify or
correct the award is pending. [2003 c.598 §23]
     Note: See notes under 36.600.
     36.710
Modification or correction of award. (1) Upon petition filed within 20 days after the petitioner is served
with a petition for confirmation of an award under ORS 36.700, the court shall
modify or correct the award if:
     (a) There was an evident mathematical
miscalculation or an evident mistake in the description of a person, thing or
property referred to in the award;
     (b) The arbitrator has made an award on a
claim not submitted to the arbitrator and the award may be corrected without
affecting the merits of the decision upon the claims submitted; or
     (c) The award is imperfect in a matter of
form not affecting the merits of the decision on the claims submitted.
     (2) If a petition made under subsection
(1) of this section is granted, the court shall modify or correct and confirm
the award as modified or corrected. Otherwise, unless a petition to vacate is
pending, the court shall confirm the award.
     (3) A petition to modify or correct an
award pursuant to this section may be joined with a petition to vacate the
award.
     (4) A party filing a petition under this
section must serve a copy of the petition on all other parties to the proceedings.
[2003 c.598 §24]
     Note: See notes under 36.600.
     36.715
Judgment on award; attorney fees and litigation expenses. (1) Upon granting an order confirming,
vacating without directing a rehearing, modifying or correcting an award, the
court shall enter a judgment in conformity with the order. The judgment may be
entered in the register and enforced as any other judgment in a civil action.
     (2) A court may allow reasonable costs of
the petition and subsequent judicial proceedings.
     (3) On application of a prevailing party
to a contested judicial proceeding under ORS 36.700, 36.705 or 36.710, the
court may add reasonable attorney fees incurred in a judicial proceeding after
the award is made to a judgment confirming, vacating without directing a
rehearing, modifying or correcting an award. [2003 c.598 §25]
     Note: See notes under 36.600.
     36.720
Jurisdiction. (1) A court
having jurisdiction over the controversy and the parties may enforce an
agreement to arbitrate.
     (2) An agreement to arbitrate providing for
arbitration in this state confers exclusive jurisdiction on the court to enter
judgment on an award under ORS 36.600 to 36.740. [2003 c.598 §26]
     Note: See notes under 36.600.
     36.725
Venue. A petition pursuant
to ORS 36.615 must be made in the court for the county in which the agreement
to arbitrate specifies the arbitration hearing is to be held or, if the hearing
has been held, in the court for the county in which it was held. Otherwise, the
petition may be made in the court for any county in which an adverse party
resides or has a place of business or, if no adverse party has a residence or
place of business in this state, in the court of any county in this state. All
subsequent petitions must be made in the court hearing the initial petition unless
the court otherwise directs. [2003 c.598 §27]
     Note: See notes under 36.600.
     36.730
Appeals. (1) An appeal may
be taken from:
     (a) An order denying a petition to compel
arbitration.
     (b) An order granting a petition to stay
arbitration.
     (c) A judgment entered pursuant to ORS
36.600 to 36.740, including but not limited to a judgment:
     (A) Confirming or denying confirmation of
an award.
     (B) Modifying or correcting an award.
     (C) Vacating an award without directing a
rehearing.
     (2) An appeal under this section must be
taken as provided in ORS chapter 19. [2003 c.598 §28]
     Note: See notes under 36.600.
     36.735
Uniformity of application and construction. In applying and construing ORS 36.600 to 36.740, consideration must be
given to the need to promote uniformity of the law with respect to its subject
matter among states that enact it. [2003 c.598 §29]
     Note: See notes under 36.600.
     36.740
Relationship to electronic signatures in Global and National Commerce Act. The provisions of ORS 36.600 to 36.740
governing the legal effect, validity and enforceability of electronic records
or electronic signatures, and of contracts performed with the use of such
records or signatures, conform to the requirements of Section 102 of the
Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 and
7002, as in effect on January 1, 2004. [2003 c.598 §30]
     Note: See notes under 36.600.
_______________
CHAPTERS 37 TO 39
[Reserved for expansion]
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