Chapter 36 — Mediation and Arbitration

 

2013 EDITION

 

MEDIATION AND ARBITRATION

 

SPECIAL ACTIONS AND PROCEEDINGS

 

DISPUTE RESOLUTION

 

(Generally)

 

36.100       Policy for ORS 36.100 to 36.238

 

36.105       Declaration of purpose of ORS 36.100 to 36.238

 

36.110       Definitions for ORS 36.100 to 36.238

 

(Dispute Resolution Programs)

 

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

 

36.145       Dispute Resolution Account

 

36.150       Additional funding

 

36.155       Grants for dispute resolution services in counties; rules

 

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

 

36.165       Termination of county participation

 

(Program Standards)

 

36.175       Rules for administration of dispute resolution programs

 

(Dispute Resolution for Public Bodies)

 

36.179       Mediation and other alternative dispute resolution services for public bodies

 

(Mediation in Civil Cases)

 

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

 

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

 

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

 

36.200       Mediation panels; qualification; procedure for selecting mediator

 

(Liability of Mediators and Programs)

 

36.210       Liability of mediators and programs

 

(Confidentiality of Mediation Communications and Agreements)

 

36.220       Confidentiality of mediation communications and agreements; exceptions

 

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

 

36.224       State agencies; confidentiality of mediation communications; rules

 

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

 

36.228       Mediations in which two or more public bodies are parties

 

36.230       Public bodies; confidentiality of mediation agreements

 

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

 

36.234       Parties to mediation

 

36.236       Effect on other laws

 

36.238       Application of ORS 36.210 and 36.220 to 36.238

 

MEDIATION OF FORECLOSURE OF AGRICULTURAL PROPERTY

 

36.250       Definitions for ORS 36.250 to 36.270

 

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

 

36.254       Contracts for mediation services

 

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

 

36.258       Qualification, duties and authority of mediator

 

36.260       Mediation agreement; effect of agreement

 

36.262       Confidentiality of mediation materials

 

36.264       Civil immunity for mediators and mediation services

 

36.266       Suspension of court proceedings during mediation; dismissal of action

 

36.268       Provision of mediation services contingent on funding

 

36.270       Utilization of mediation program for other disputes

 

COURT ARBITRATION PROGRAM

 

36.400       Mandatory arbitration programs

 

36.405       Referral to mandatory arbitration; exemptions

 

36.410       Stipulation for arbitration; conditions; relief

 

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

 

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

 

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

 

OREGON INTERNATIONAL COMMERCIAL ARBITRATION AND CONCILIATION ACT

 

36.450       Definitions for ORS 36.450 to 36.558

 

36.452       Policy

 

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

 

36.456       Construction of ORS 36.450 to 36.558

 

36.458       When written communication considered to have been received

 

36.460       Waiver of objection to arbitration

 

36.462       Prohibition on intervention by court

 

36.464       Venue

 

36.466       Arbitration agreements to be in writing

 

36.468       Application to stay judicial proceedings and compel arbitration

 

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

 

36.472       Number of arbitrators

 

36.474       Procedure for appointment of arbitrators; appointment by circuit court

 

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

 

36.478       Procedure for challenging arbitrator

 

36.480       Withdrawal of arbitrator; termination of mandate

 

36.482       Substitute arbitrator; effect of substitution

 

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

 

36.486       Interim measures of protection ordered by arbitral tribunal; security

 

36.488       Fairness in proceedings

 

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

 

36.492       Place of arbitration

 

36.494       Commencement of arbitral proceedings

 

36.496       Language used in proceedings

 

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

 

36.500       Oral hearing; notice; discovery

 

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

 

36.504       Appointment of experts

 

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

 

36.508       Choice of laws

 

36.510       Decision of arbitral tribunal

 

36.512       Settlement

 

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

 

36.516       Termination of arbitral proceedings

 

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

 

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

 

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

 

36.524       Grounds for refusal to enforce award; fee

 

36.526       Provisions to be interpreted in good faith

 

36.528       Policy to encourage conciliation

 

36.530       Guiding principles of conciliators

 

36.532       Manner of conducting conciliation proceedings

 

36.534       Draft conciliation settlement

 

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

 

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

 

36.540       Termination of conciliation proceedings

 

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

 

36.544       Submission to conciliation not waiver

 

36.546       Conciliation agreement to be treated as arbitral award

 

36.548       Costs of conciliation proceedings

 

36.550       Payment of costs

 

36.552       Effect of conciliation on jurisdiction of courts

 

36.554       Immunities

 

36.556       Severability

 

36.558       Short title

 

UNIFORM ARBITRATION ACT

 

36.600       Definitions

 

36.605       Notice

 

36.610       Effect of agreement to arbitrate; nonwaivable provisions

 

36.615       Application for judicial relief; fees

 

36.620       Validity of agreement to arbitrate; form of acknowledgment of agreement

 

36.625       Petition to compel or stay arbitration

 

36.630       Provisional remedies

 

36.635       Initiation of arbitration

 

36.640       Consolidation of separate arbitration proceedings

 

36.645       Appointment of arbitrator; service as neutral arbitrator

 

36.650       Disclosure by arbitrator

 

36.655       Action by majority

 

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

 

36.665       Arbitration process

 

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

 

36.675       Witnesses; subpoenas; depositions; discovery

 

36.680       Judicial enforcement of preaward ruling by arbitrator

 

36.685       Award

 

36.690       Change of award by arbitrator

 

36.695       Remedies; fees and expenses of arbitration proceeding

 

36.700       Confirmation of award

 

36.705       Vacating award

 

36.710       Modification or correction of award

 

36.715       Judgment on award; attorney fees and litigation expenses

 

36.720       Jurisdiction

 

36.725       Venue

 

36.730       Appeals

 

36.735       Uniformity of application and construction

 

36.740       Relationship to electronic signatures in Global and National Commerce Act

 

DISPUTE RESOLUTION

 

(Generally)

 

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

 

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

      (7) “Mediation communications” means:

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

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

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

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

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

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

 

      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]

 

(Dispute Resolution Programs)

 

      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 University of Oregon or Portland State University 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; 2009 c.762 §42; 2013 c.768 §103]

 

      Note: The amendments to 36.145 by section 103, chapter 768, Oregon Laws 2013, become operative July 1, 2014. See section 171, chapter 768, Oregon Laws 2013. The text that is operative until July 1, 2014, is set forth for the user’s convenience.

      36.145. 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 Oregon University System 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.

      36.150 Additional funding. Portland State University, on behalf of the Mark O. Hatfield School of Government and the University of Oregon, on behalf of 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 University of Oregon and Portland State University under this section shall be deposited in the Dispute Resolution Account. [1989 c.718 §11; 2003 c.791 §15; 2005 c.817 §4b; 2009 c.762 §43; 2013 c.768 §104]

 

      Note: The amendments to 36.150 by section 104, chapter 768, Oregon Laws 2013, become operative July 1, 2014. See section 171, chapter 768, Oregon Laws 2013. The text that is operative until July 1, 2014, is set forth for the user’s convenience.

      36.150. The Oregon University System, 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 Oregon University System under this section shall be deposited in the Dispute Resolution Account.

 

      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 allocated to the University of Oregon on behalf of the University of Oregon School of Law for distribution under this section. The Board of Trustees of the University of Oregon may adopt standards 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; 2009 c.762 §44; 2013 c.768 §105]

 

      Note: The amendments to 36.155 by section 105, chapter 768, Oregon Laws 2013, become operative July 1, 2014. See section 171, chapter 768, Oregon Laws 2013. The text that is operative until July 1, 2014, is set forth for the user’s convenience.

      36.155. 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 Oregon University System 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.

 

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

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

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

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

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

 

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

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

 

      36.170 [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; 2007 c.860 §26; 2009 c.659 §§18,19; 2010 c.107 §§36,37,38; repealed by 2011 c.595 §107]

 

(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]

 

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

 

(Mediation in Civil Cases)

 

      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, 124.005 to 124.040 or 163.760 to 163.777, 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; 2013 c.687 §12]

 

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

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

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

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

 

      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 party’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 workers’ compensation benefits conducted pursuant to rules adopted by the Workers’ 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 or any other legal entity. [1989 c.967 §2; 2001 c.104 §9; 2005 c.657 §3; 2009 c.294 §2]

 

      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 days’ 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 producer’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 producer’s agricultural property;

      (b) Evidenced by a real estate contract covering the agricultural producer’s agricultural property; or

      (c) The subject of one or more statutory liens that have attached to the agricultural producer’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 producer’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 arbitrator’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) Except as provided in ORS 30.136, in a civil action in a circuit court where all parties have appeared, the court shall refer the action to arbitration under ORS 36.400 to 36.425 if either of the following applies:

      (a) The only relief claimed is recovery of money or damages, and no party asserts a claim for money or general and special damages in an amount exceeding $50,000, exclusive of attorney fees, costs and disbursements and interest on judgment.

      (b) The action is a domestic relations suit, as defined in ORS 107.510, in which the only contested issue is the division or other disposition of property between the parties.

      (2) The presiding judge for a judicial district may do either of the following:

      (a) Exempt from arbitration under ORS 36.400 to 36.425 a civil action that otherwise would be referred to arbitration under this section.

      (b) Remove from further arbitration proceedings a civil action that has been referred to arbitration under this section, when, in the opinion of the judge, good cause exists for that exemption or removal.

      (3) If a court has established a mediation program that is available for a civil action that would otherwise be subject to arbitration under ORS 36.400 to 36.425, the court shall not assign the proceeding to arbitration if the proceeding is assigned to mediation pursuant to the agreement of the parties. Notwithstanding any other provision of ORS 36.400 to 36.425, a party who completes a mediation program offered by a court shall not be required to participate in arbitration under ORS 36.400 to 36.425. [Formerly 33.360; 1995 c.455 §2a; 1995 c.618 §11; 1995 c.658 §31a; 1995 c.781 §32; 2005 c.274 §2; 2009 c.83 §3]

 

      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 21.225.

      (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]

 

OREGON INTERNATIONAL COMMERCIAL ARBITRATION AND CONCILIATION ACT

 

      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 United States of America and any other country or countries.

      (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 Oregon.

      (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 Oregon by virtue of which certain disputes may not be submitted to arbitration or conciliation or may be submitted to arbitration or conciliation only according to provisions other than those of ORS 36.450 to 36.558. ORS 36.450 to 36.558 supersede ORS 36.100 to 36.425 with respect to international commercial arbitration and conciliation. [1991 c.405 §3]

 

      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 addressee’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 Oregon, the county where any party to the court proceeding resides or has a place of business.

      (c) In any case not covered by paragraph (a) or (b) of this subsection, in any county in the State of Oregon.

      (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 party’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 tribunal’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 tribunal’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 person’s spouse or minor child, or anyone residing in the person’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 person’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 arbitrator’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 claimant’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 expert’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 expert’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 party’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 Oregon or of the United States; or

      (B) The award is in conflict with the public policy of the State of Oregon or of the United States.

      (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 tribunal’s opinion will eliminate the grounds for setting aside.

      (5) The clerk of the circuit court shall collect the filing fees established under ORS 21.135 from the party making application for setting aside under subsection (1) of this section and from a party filing an appearance in opposition to the application. [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; 2011 c.595 §41]

 

      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 the filing fee established under ORS 21.135, 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; 2011 c.595 §42]

 

      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 the filing fee established under ORS 21.135 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 party’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 Oregon or of the United States; or

      (B) The recognition or enforcement of the arbitral award would be contrary to the public policy of the State of Oregon or of the United States.

      (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; 2011 c.595 §43]

 

      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 Oregon to encourage parties to an international commercial agreement or transaction which qualifies for arbitration or conciliation pursuant to ORS 36.454 (3) to resolve disputes arising from such agreements or transactions through conciliation. The parties may select or permit an arbitral tribunal or other third party to select one or more persons to service as the conciliator or conciliators who shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute. [1991 c.405 §41]

 

      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, 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; 2009 c.294 §3]

 

      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 person’s attention or the notice is delivered at the person’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, 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; 2011 c.595 §118]

 

      Note: See notes under 36.600.

 

      36.615 Application for judicial relief; fees. (1) 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. The petitioner and the respondent must pay the filing fees established under ORS 21.135.

      (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; 2010 c.107 §§40,41; 2011 c.595 §44]

 

      Note: See notes under 36.600.

 

      36.620 Validity of agreement to arbitrate; form of acknowledgment of agreement. (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) At least 72 hours before the first day of the employee’s employment, the employee has received notice in a written employment offer from the employer that an arbitration agreement is required as a condition of employment, and the employee has been provided with the required arbitration agreement that meets the requirements of, and includes the acknowledgment set forth in, subsection (6) of this section; or

      (b) The arbitration agreement is entered into upon a subsequent bona fide advancement of the employee by the employer.

      (6) The acknowledgment required by subsection (5) of this section must be signed by the employee and must include the following language in boldfaced type:

______________________________________________________________________________

      I acknowledge that I have received and read or have had the opportunity to read this arbitration agreement. I understand that this arbitration agreement requires that disputes that involve the matters subject to the agreement be submitted to mediation or arbitration pursuant to the arbitration agreement rather than to a judge and jury in court.

______________________________________________________________________________

[2003 c.598 §6; 2007 c.902 §1; 2011 c.489 §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: Section 2, chapter 489, Oregon Laws 2011, provides:

      Sec. 2. The amendments to ORS 36.620 by section 1 of this 2011 Act apply to arbitration agreements entered into on or after the effective date of this 2011 Act [January 1, 2012]. [2011 c.489 §2]

 

      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 person’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 party’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 party’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 arbitrator’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 arbitrator’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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