Chapter 36

 

      36.100 to 36.210

 

LAW REVIEW CITATIONS: 27 WLR 552 (1991); 33 WLR 703 (1997)

 

      36.110

 

NOTES OF DECISIONS

 

      “Mediation” as used in this section means only parts of process in which mediator participates and does not include separate interactions between parties and their attorneys that take place outside mediator’s presence and without mediator’s direct involvement. Alfieri v. Solomon, 358 Or 383, 365 P3d 99 (2015)

 

      Where plaintiff/mediating party privately communicated with attorney outside mediation proceedings and communications were integrally related to mediation, those communications were not “mediation communications,” which include only communications between persons listed in statute while persons are present at mediation proceedings, that occur during time mediation is underway and that relate to substance of dispute being mediated. Alfieri v. Solomon, 358 Or 383, 365 P3d 99 (2015)

 

      36.220 to 36.238

 

LAW REVIEW CITATIONS: 33 WLR 703 (1997)

 

      36.220

 

NOTES OF DECISIONS

 

      Nonconfidentiality provision for mediation communications otherwise subject to discovery and not prepared for use in mediation applies only to materials, not to communications made to party or other person involved in mediation proceeding. Bidwell and Bidwell, 173 Or App 288, 21 P3d 161 (2001), Sup Ct review denied

 

      Where plaintiff/mediating party privately communicated with attorney outside mediation proceedings and communications were integrally related to mediation, those communications were not “mediation communications,” which include only communications between persons listed in statute while persons are present at mediation proceedings, that occur during time mediation is underway and that relate to substance of dispute being mediated. Alfieri v. Solomon, 358 Or 383, 365 P3d 99 (2015)

 

      36.222

 

NOTES OF DECISIONS

 

      Where plaintiff/mediating party and plaintiff’s attorney held private discussions outside mediation proceedings, even though mediation proceedings were ongoing, those discussions were not “mediation communications” as used in ORS 36.110 so were not confidential under this section nor inadmissible under ORS 36.222. Alfieri v. Solomon, 358 Or 383, 365 P3d 99 (2015)

 

      36.400 to 36.425

(formerly 33.350 to 33.400)

 

LAW REVIEW CITATIONS: 22 WLR 237 (1986); 27 WLR 551 (1991)

 

      36.425

 

NOTES OF DECISIONS

 

      Although trial court has inherent authority to dismiss action for failure of plaintiff to prosecute diligently, authority does not exist to dismiss defendant’s appeal for inadequate participation by defendant at arbitration when this section mandates reversal and remand to trial court for de novo trial. Main Street Asset Corp. v. Cunningham, 98 Or App 346, 778 P2d 1003 (1989)

 

      As used in this section, “de novo” contemplates independent decision by different decision maker, rather than simply factual review. Krause v. Andersen, 108 Or App 211, 814 P2d 178 (1991)

 

      Arbitrator’s ruling on whether insurance policy was ambiguous was not binding on trial court after request for trial de novounder this section. Gage v. All Nations Ins. Co., 108 Or App 534, 816 P2d 682 (1991), aff’d 314 Or 700, 842 P2d 784 (1992)

 

      Judgment entered on arbitration award has effect of final judgment and cannot be set aside for purpose of extending time for appeal. Old Republic Surety Co. v. McIlwain, 115 Or App 615, 839 P2d 743 (1992)

 

      Default order in arbitration proceeding does not defeat party’s right to de novo trial. Treverton v. Arnold, 118 Or App 461, 847 P2d 914 (1993); Monroe v. Harmon, 158 Or App 196, 973 P2d 392 (1999), Sup Ct review denied

 

      Although arbitration award was not appealable, refusal of court to set aside judgment based on arbitration award was appealable post-judgment order. Green Seasons Turf v. Shiva’s Restaurant Corp., 125 Or App 227, 864 P2d 1345 (1993)

 

      Party prevailing upon trial de novo is not required to request attorney fees or cite statutory basis for fees. Markus v. Clark, 149 Or App 156, 941 P2d 1086 (1997)

 

      Attorney fees on appeal are separate award from attorney fees awarded at trial level, but are limited in amount in same manner as trial-level attorney fees. Markus v. Clark, 150 Or App 331, 946 P2d 303 (1997)

 

      Whether defendant improves position as result of judgment in trial de novo is determined by comparison of outcomes only for those trial claims that were part of arbitration submission. Friedman v. Christy, 158 Or App 189, 973 P2d 378 (1999)

 

      Hearing requirement of ORCP 68C does not apply to exceptions taken to arbitrator award of attorney fees. Ashley v. Garrison, 162 Or App 585, 986 P2d 654 (1999)

 

      Exception pertaining solely to attorney fees or costs has finality and appealability scheme that differs from finality and appealability scheme for notice of appeal and request for trial de novo on all issues. Deacon v. Gilbert, 164 Or App 724, 995 P2d 557 (2000)

 

      Notice of appeal and request for trial de novo may be filed with clerk prior to filing of decision and award which is being appealed. Ray Klein, Inc. v. Preheim, 178 Or App 71, 35 P3d 1059 (2001)

 

      Where arbitrator’s decision is affirmed by operation of law, appeal period commences on date decision is reduced to judgment. Mitchell v. City of St. Paul, 178 Or App 312, 36 P3d 513 (2001), Sup Ct review denied

 

      Limitation on attorney fee amount applies to total of fees incurred at trial and on appeal. Williams v. Cabinet Masters, Inc., 335 Or 49, 57 P3d 145 (2002)

 

      Failure of party filing written notice of appeal and request for trial de novo to pay trial fee or jury trial fee does not deprive court of jurisdiction to hear case. Cramblit v. Diamond B Constructors, 197 Or App 358, 105 P3d 906 (2005)

 

      Oregon Rules of Civil Procedure apply to appeal procedure provisions of this section, but not to attorney fee provisions. Guess v. Lee, 198 Or App 304, 108 P3d 647 (2005), Sup Ct review denied

 

      Period for party to file written notice of appeal and request for trial de novo does not commence until arbitrator’s decision has been both filed with clerk and served on parties. Guess v. Lee, 198 Or App 304, 108 P3d 647 (2005), Sup Ct review denied

 

      Parties in dissolution proceeding may agree to forego right to request trial de novo in circuit court of arbitration award determining division of marital property. Woods and Woods, 207 Or App 452, 142 P3d 1072 (2006)

 

      Party has “incurred” attorney fees only if party is liable for paying fees. Anderson v. Wheeler, 214 Or App 318, 164 P3d 1194 (2007)

 

      For purposes of awarding attorney fees, where matter returns to trial court following arbitration, proceeding resumes as trial de novo whether matter ultimately resolves after full trial or at earlier stage such as summary judgment. Werbowski v. Red Shield Insurance Co., 221 Or App 271, 190 P3d 406 (2008)

 

      Notice of appeal does not need to be served within 20 days of filing of arbitration award. Wilcox v. Umali, 241 Or App 124, 250 P3d 364 (2011), Sup Ct review denied

 

      Subsection (2) of this section is alternative to subsection (6) of this section for purposes of challenging arbitration decision on attorney fees when challenge to fee decision is sole challenge; where plaintiff brought challenge to attorney fees decision and arbitrator’s decision regarding attorney fees within 20 days as required by subsection (2), plaintiff timely filed request for trial de novo. Lee v. American Family Mutual Insurance Co., 279 Or App 282, 379 P3d 698 (2016)

 

      36.600 to 36.740

 

NOTES OF DECISIONS

 

      Uniform Arbitration Act applies to actions filed on or after January 1, 2004, regarding agreement to arbitrate, regardless of date of agreement. Martin v. Comcast of California, 209 Or App 82, 146 P3d 380 (2006)

 

      Uniform Arbitration Act applies to any arbitration agreement regardless of when arbitrating parties entered into agreement. Jeld-Wen, Inc. v. PacifiCorp, 240 Or App 124, 245 P3d 685 (2010)

 

      Uniform Arbitration Act gives courts authority to deny motion to compel arbitration under arbitration clause on grounds that contract containing clause is unenforceable. Hinman v. Silver Star Group, LLC, 280 Or App 34, 380 P3d 994 (2016)

 

      36.620

 

NOTES OF DECISIONS

 

      Estoppel from use of arbitration clause and waiver of enforcement of arbitration clause are condition precedents to arbitration. Livingston v. Metropolitan Pediatrics, LLC, 234 Or App 137, 227 P3d 796 (2010)

 

      36.625

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 36.310)

 

      Employment Relations Board has exclusive jurisdiction to enforce arbitration agreements arising out of public-sector labor relations pursuant to ORS 243.672 and 243.676. Smith v. State of Oregon, 31 Or App 15, 569 P2d 677 (1977), Sup Ct review denied

 

      Order entered directing parties to proceed with arbitration was not final order subject to appeal under [former] ORS 19.010. Peter Kiewit v. Port of Portland, 291 Or 49, 628 P2d 720 (1981)

 

      When a party seeks a declaratory judgment that it is not required to comply with defendant’s demand to arbitrate a dispute pursuant to their contract, the court may consider only those defenses to arbitration which it could have considered had the party seeking arbitration filed a petition to compel arbitration. Union County School District No. 1 v. Valley Inland Pacific Constructors, Inc., 59 Or App 602, 652 P2d 349 (1982)

 

      Where insurer and insured disagreed about amount of damages insured should recover and insured petitioned for order compelling arbitration without first making written demand for arbitration pursuant to terms of insurance policy, parties’ disagreement does not qualify as “failure, neglect or refusal...to perform.” Moresi v. Nationwide Mutual, 309 Or 619, 789 P2d 667 (1990)

 

      Where party is able to proceed ex parte under agreed arbitration procedure, party is not “aggrieved” by failure, neglect or refusal of other party. Shannon v. Swyers, 129 Or App 573, 879 P2d 1339 (1994)

 

In general

 

      Duty of court to act “summarily” means court must decide issue of arbitrability expeditiously and without jury trial. Greene v. Salomon Smith Barney, Inc., 228 Or App 379, 209 P3d 333 (2009), Sup Ct review denied

 

      Authority of court under ORCP 32C to make determination regarding class certification conditional is consistent with court duty to determine arbitrability issue “summarily”. Greene v. Salomon Smith Barney, Inc., 228 Or App 379, 209 P3d 333 (2009), Sup Ct review denied

 

      36.690

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 36.350)

 

      Although 20-day limitation period of this section was short period of time in which to file suit under Labor Management Relations Act, sec. 301, it was not so short that it “unduly qualifies or diminishes the federal right the cause of action seeks to protect.” McNaughton v. Dillingham Corp., 707 F2d 1042 (1983)

 

      In action by union under Labor Management Relations Act, section 301 to set aside arbitration decision, federal district court was correct in applying 20-day limitation period of this section. United Brotherhood of Carpenters and Joiners v. FMC Corp, 724 F2d 815 (1984)

 

      In action by union to compel arbitration under National Labor Relations Act, 20-day limitation period under this section would conflict with federal labor policy. Millmen’s Union Local No. 1120 v. Pay Less Drug, 589 F Supp 675 (1984)

 

      36.695

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 36.335)

 

      Public policy does not prohibit arbitrator’s award of punitive damages where permitted by arbitration agreement and otherwise recoverable on underlying claim. Russell v. Kerley, 159 Or App 647, 978 P2d 446 (1999), Sup Ct review denied

 

      Because arbitration proceeding is separate from abated court action, arbitrator’s determination of fact that appears on face of award or that was actually and necessarily included therein has preclusive effect in subsequent court proceeding. Westwood Construction Company v. Hallmark Inns & Resorts, Inc., 182 Or App 624, 50 P3d 238 (2002), Sup Ct review denied

 

In general

 

      Because tenant and landlords did not explicitly agree or indicate in stipulation intent to “waive” or “vary the effect” of arbitrator’s authority under this section to “order such remedies as the arbitrator consider[ed] just and appropriate...”, arbitrator did not exceed scope of authority by ordering remedies like amount of money to be paid, method of payment, shifting of responsibility and time frame to have repair work completed. Couch Investments, LLC v. Peverieri, 270 Or App 233, 346 P3d 1299 (2015), aff’d 359 Or 125, 371 P3d 1202 (2016)

 

      36.700

 

NOTES OF DECISIONS

 

      Issuance of order confirming award does not limit ability of court to subsequently vacate judgment under ORCP 71C and undo award. MBNA America Bank v. Garcia, 227 Or App 202, 205 P3d 53 (2009)

 

      36.705

 

NOTES OF DECISIONS

 

      “Evident partiality” means actual, discernable inclination to favor one party and does not require proof that award was affected by that inclination. Prime Properties, Inc. v. Leahy, 234 Or App 439, 228 P3d 617 (2010)

 

      36.715

 

NOTES OF DECISIONS

 

      Where plaintiff incurred attorney fees in arbitration, this section does not authorize award of those fees to plaintiff because this section applies only to attorney fees incurred in judicial proceedings. Weitman Excavation, LLC v. CPM Development Corp., 276 Or App 583, 368 P3d 66 (2016)

 

      36.730

 

NOTES OF DECISIONS

 

      Exclusive means for appealing order denying petition to compel arbitration is interlocutory appeal taken from order denying petition. Snider v. Production Chemical Manufacturing, Inc., 348 Or 257, 230 P3d 1 (2010)