PROCEDURAL RULES FOR ARBITRATION
PAUL PIERSON, ARBITRATOR
These rules are adopted with permission from the procedural rules for arbitration promulgated by the Arbitration Service of Portland, Inc. (ASP), revised January 1, 1996. These rules are designed for private arbitration in cases not involving ASP, and are revised accordingly from the ASP rules.
PROCEDURAL RULES FOR ARBITRATION
PAUL PIERSON, ARBITRATOR
1. Predispute Agreements: Claim Initiation and Filing Fees.
If an agreement requires or authorizes the resolution of any future dispute by arbitration, and Paul Pierson is selected as arbitrator pursuant to such an agreement without the involvement of ASP or any other arbitration administration service, the following claim initiation procedures shall apply for a dispute arising thereunder. Unless otherwise stated, references herein to "the arbitrator" refer to Paul Pierson.A. Claim Initiation. Any party may initiate arbitration by paying to Paul Pierson the required filing fees and by filing with Paul Pierson and serving a copy thereof upon each party against whom relief is sought (and by serving a copy thereof on each party's attorney, if known) a copy of the predispute agreement (or the pertinent portions thereof) and a statement of claim that summarizes the basis of the claim, the relief sought, the dollar amount of any money demand, whether interest is claimed, whether attorney's fees are claimed (and, if so, whether based on contract or statute), and, to the extent known by the initiating party, the opposing party's denial or defense thereto. The Statement of Claim shall include the names, addresses, and (if known) the telephone numbers of the parties and their attorneys. (Note: claim forms are available at Paul Pierson’s office.) Paul Pierson may refuse to accept claim initiation, or may suspend the arbitration process until claimant pays the required filing fee.
B. Filing Fees. When a claim is filed, the initiating party shall pay Paul Pierson a non-refundable administrative filing fee in the amount of $150.
C. Answer, Counterclaims and Crossclaims; Claim Changes A responding party shall file an answering statement setting forth any denial or defense to the initiating party's statement of claim and setting forth any counterclaim against the initiating party or any crossclaim against any other party to the arbitration, which counterclaim or crossclaim shall include a claim summary and statements required of a claimant in subparagraph A above. A party may assert an additional claim or amend a claim, answer, counterclaim or crossclaim. A party against whom any claim is sought for attorney's fees or costs of arbitration shall be deemed to have counterclaimed for the same attorney's fees/costs against the claiming party without the necessity of filing an answering statement therefor.
Time to Fil
e: Any of the matters mentioned herein may be filed without the consent of any person if filed prior to the 30th day after the respondent is served with a copy of claimant’s claim and arbitration agreement or ten days after respondent is served with a notice of proposed default, whichever date comes later. Thereafter, no such matter may be filed without the consent of each affected party, unless allowed by the arbitrator, whose decision with respect thereto shall be based upon the timeliness of the assertion in relation to the scheduled hearing date, the time available for an affected party to prepare therefor, and other pertinent factors.Where to File: Such matters shall be filed with the law office of Paul Pierson, 16210 East Hoffeldt Lane, Brookings, Oregon 97415.
Whom to Serve: A copy of the answering statement, additional and amended claim, and counterclaim and crossclaim shall be served upon all affected parties.
D. Consolidation. Two or more arbitrations that have been initiated pursuant to Rule 1 may be consolidated for hearing upon request by a party if, in the sole and exclusive determination of the arbitrator, all of the claims involve a common question of law or fact and a consolidation would not unduly inconvenience, delay, or prejudice the rights of any party. The arbitrator shall give written notice of the proposed consolidation to all parties, and each party shall have ten days to make oral or written objections thereto. Consolidation shall be allowed if all parties consent to the proposed consolidation and may be granted by the arbitrator over the objection of one or more parties. (Note: See Rules 44 & 45 for default procedures against a non-responding party or a non-contested dispute.)
2. Submission Agreements: Initiation of Arbitration and Filing Fees.
If an agreement requires the resolution of an existing dispute by arbitration and authorizes one party to initiate arbitration through an arbitrator of their choice, the following initiation procedures shall apply:A. Initiation. Any party may initiate an arbitration proceeding under these rules by filing at the law office of Paul Pierson a submission agreement which has been signed by each party to the dispute (or by such party's attorney), and by paying to Paul Pierson the required filing fee of $150.
The arbitrator may suspend all arbitration proceedings until the required filing fee has been paid.
B. Form of Submission Agreement. The submission agreement shall be on a form approved or accepted by Paul Pierson and shall contain or have attached thereto a concise statement of claim that summarizes on behalf of each party the basis of the claim, the relief sought, the dollar amount of any money demand, whether interest is claimed, whether attorney's fees are claimed (and, if so, whether based on contract or statute), and any party's denial or defense thereto.
A. Service: How Made. (From ORCP 9B) Whenever under these rules service is required or permitted to be made upon a party, and that party is represented by an attorney, the service shall be made upon the attorney. Service upon the attorney or upon a party shall be made by delivering a copy to such attorney or party or by mailing it or faxing it to such attorney's or party's last known address. Delivery of a copy within this rule means: handing it to the person to be served; or leaving it at such person's office with such person's clerk or person apparently in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at such person's dwelling house or usual place of abode with some person over 14 years of age and residing therein. Service by mail is complete upon mailing.
B. Filing. The filing of any paper occurs when it arrives at the office of Paul Pierson, whether accomplished by mail, fax, or personal delivery.
The arbitration hearing shall be held at the office of Paul Pierson or a location designated by Paul Pierson, unless the parties agree to hold it elsewhere.5. Responding to Claim. The party who has been served with a Notice of Claim ("respondent") shall file with the arbitrator a responsive pleading stating in short and plain terms the respondent’s defenses to each claim asserted, and admitting or denying the allegations upon which the claimant relies. If the respondent is without knowledge or information sufficient to form a belief as to the truth of an allegation, the respondent shall so state and it shall have the effect of a denial.
6. Time for Filing Responsive Pleading. The respondent shall file a responsive pleading at the arbitrator’s office not more than 30 days from the date on which the claim was served upon them. The respondent shall serve a copy of the responsive pleadings on the claimant in accordance with Rule 3.
7. Reserved for Expansion
8. Reserved for Expansion
9. Reserved for Expansion
If Paul Pierson resigns, dies, withdraws, declines or becomes disqualified or unable to act as an arbitrator, a replacement arbitrator shall be obtained in the manner specified for the selection and appointment of an arbitrator under the arbitration rules of ASP.11. Oath and Impartiality of Arbitrator; Conflicts Avoidance Form.
Paul Pierson shall sign a form of oath acknowledging the arbitrator's impartiality and disclosing any significant business or social relationships with any party, any party's attorney, or any witness. The arbitrator shall maintain the signed oath in his file and serve a copy thereof on each party.In order to alert any proposed arbitrator to a potential conflict of interest or close relationship, and to permit the arbitrator to disclose any information which might affect impartiality, each party shall disclose to Paul Pierson the name of its principals, key witnesses, and attorneys on a disclosure form and shall return the form to Paul Pierson. (A copy need not be sent to the other party.)
12. Arbitrator Challenge Procedure.
At any time prior to the rendering of the award, but as soon as practicable after acquiring such information, any party may challenge an arbitrator on the basis of partiality, bias, financial or personal interest in the result of the arbitration, or past or current relationship with any party or party's attorney. The challenging party shall inform Paul Pierson of such information. If the arbitrator denies such information or denies that it would affect the arbitration and therefore declines to resign, he shall so inform the parties. Either party may appeal the arbitrator’s decision not to recuse himself by filing a claim with Arbitration Service of Portland ("ASP") and a summary of their objection, along with ASP’s filing fees, within 10 days from Paul Pierson’s decision not to recuse himself. ASP shall then determine the recusal issue and either affirm Paul Pierson as arbitrator or select a new arbitrator pursuant to ASP rules. Irregardless of ASP’s decision, the arbitration shall thereafter proceed pursuant to ASP’s rules.13. Conduct and Role of Arbitrator.
In the arbitration proceedings, an arbitrator shall be bound by the same ethical considerations as that of a judge and will adhere to the conduct prescribed by the Code of Judicial Conduct.14. Restrictions on Communication Between Arbitrator and Parties.
No disclosure of any offers or settlement made by any party shall be made to the arbitrator prior to the announcement of the award. Neither counsel nor any party may communicate with the arbitrator regarding the merits of the case except in the presence of, or upon reasonable notice to, all other parties. An application or discussion for a postponement or other such peripheral matters may be communicated directly with the arbitrator when warranted by necessity and time constraints, but only after unsuccessful attempts to communicate through the secretary of the arbitrator and after unsuccessful attempts to discuss the matter via conference call among all concerned.15. Compensation of Arbitrator.
A. Rate of Compensation; Expenses. The arbitrator shall be paid at the rate of $150 per hour, including time spent on preliminary, scheduling, and procedural matters, time spent in research and reading briefs, hearing time, time spent in deliberations and the rendering of the award and any supplemental or amended award, and travel time between the arbitrator's office and the hearing site, and shall be reimbursed for necessary and reasonable out-of-pocket expenses (such as copying charges, postage, and travel costs, but not secretarial or overhead costs).
B. Minimum Compensation. If an arbitration is terminated prior to hearing or concludes during or after a brief hearing, as compensation for such matters as scheduling, preliminary work, and hearing attendance, the arbitrator shall be paid the following minimum fees:
If canceled after the scheduling of a hearing but prior to the day of the hearing $100.00
If canceled on the day of the hearing but prior to the commencement thereof $150.00
After the hearing commences $200.00
The above fees are in lieu of the hourly rates, and each party shall pay an equal share of said minimum fee. If the arbitrator expended time which would result in compensation exceeding the above minimum fees, the arbitrator shall be compensated therefor upon preparing and serving a Statement of Time Expended, and the above minimum fees shall not apply.
C. Deposit Required; Placement in Arbitrator's Trust Account. The arbitrator, with input from the parties shall estimate the time that the arbitrator will be required to expend in the arbitration proceeding. Each party shall pay to the arbitrator an equally proportionate share of such estimated compensation and estimated expenses reimbursable under paragraph A.
The arbitrator shall place all compensation deposits received in the arbitrator's trust account and shall not compensate himself until the arbitrator has submitted the required Statement of Time Expended to each party (as required in subparagraph G below).
D. Time of Deposit. Each party shall mail its compensation deposit(s) to the arbitrator within fourteen days after receiving notice of the hearing date.
E. Suspension of Proceedings Pending Payment of Deposit. The arbitrator may decline to begin a hearing or to continue with a hearing or to render an award until the necessary deposits are made. An arbitrator shall notify all parties prior to the hearing if any party's compensation deposit has not been paid or if, during the course of the proceedings, it appears that the compensation deposit will not be sufficient to compensate for the time necessary to complete the arbitration.
F. Payment by One Party of Another's Deposit. If a party has not timely paid, or has indicated its inability to timely pay, part or all of an arbitrator's compensation deposit, the other party or parties may advance such compensation deposit in order to continue the arbitration, and the advancing party shall be entitled to an adjusting offset or reimbursement in the award pursuant to Rule 32 (if the parties have not otherwise adjusted the matter between themselves).
G. Statement of Time Expended and Expenses. An arbitrator shall serve a detailed Statement of Time Expended on each party within fourteen days after the award or supplemental award or any earlier termination of the arbitration by settlement or otherwise, accompanied by any refund due to each party who paid the compensation deposit. The Statement of Time Expended shall itemize the dates, task performed, and time spent by the arbitrator on the arbitration, or shall indicate the minimum fee charge, and shall also list expenses reimbursable under paragraph A.
H. Payment of Compensation If Deposit Inadequate; Attorney's Fees. If the Statement of Time Expended results in any compensation balance owing to the arbitrator, each party shall pay its required share thereof to such arbitrator within thirty days after the date of service. In the event the arbitrator commences an action to recover said balance, the prevailing party therein shall be entitled to recover reasonable attorney's fees awarded by the court, including any appellate court.
I. Compensation Disputes. Any party may challenge an arbitrator's Statement of Time Expended by filing with the arbitrator a statement detailing the objections, who shall respond within fourteen days from the date of the objector's letter.
16. Preliminary Hearing on Certain Defenses.
If a party by answer raises a defense that the claim has not been commenced within the time limited by statute or contract or that the party did not agree to arbitrate or did not agree to use Paul Pierson as an arbitrator, a preliminary hearing to determine such defense(s) only shall be held if all of the affected parties so stipulate and may be held in the sole discretion of the arbitrator upon a written request supported by affidavit filed with the arbitrator and served upon all parties. In determining whether to hold a preliminary hearing, the arbitrator shall assess and balance the customary bifurcation versus single hearing factors and may consider the apparent merits of any party's position on such defense based upon any affidavits or briefs filed by the parties. A preliminary hearing date may be set by any of the procedures set forth above, but shall not delay the scheduling of an ultimate hearing (if necessary) on all other issues. If the underlying facts of such dispositive defense are not in dispute, the hearing may consist of a telephone conference call to permit the parties to argue their legal positions. If the preliminary hearing results in the defeat of all of a party's claim, the arbitrator shall render an appropriate award with respect thereto.17. Scheduling the Hearing; Available Dates Calendar.
When both parties have filed an "appearance" with the arbitrator, the arbitrator shall serve upon each party a calendar upon which each party shall indicate all of the dates which are available to the party and the party's attorney for the arbitration hearing. Each party shall mail or deliver the completed availability calendar to the arbitrator within fourteen days of the service date. If a party fails to return a completed availability calendar within the required time, the arbitrator may assume that the party and attorney are available on all of the calendar dates (excluding weekends and holidays).The arbitrator shall promptly set the date and time of the hearing as soon as practicable according to the availability schedules submitted by the parties. If all the parties request an expedited setting of the hearing, or if the arbitrator believes that it will be difficult to set a date by using the available dates calendar procedure, or if the arbitrator believes that one of the parties is not using good faith efforts to schedule a time for the hearing, the arbitrator may set the hearing date via a telephone conference call or in any manner reasonably calculated to overcome the apparent obstacles.
The arbitrator shall determine the office or premises where the hearing is to be held. If the hearing cannot be conveniently held in the office of the arbitrator, it shall be held in the offices of an attorney for one of the parties if the parties so agree and, if not, the arbitrator shall obtain a different location.
The arbitrator shall mail to each party a notice of the time and place of the hearing (in the locale agreed upon by the parties or determined pursuant to Rule 4).
A hearing date may be postponed at any time only upon just and sufficient cause by the arbitrator, or upon the application of any party to the arbitrator (whose decision shall be final), or by the agreement of the parties. (U.T.C.R. 13.140) Each party is entitled to discovery in accordance with the Oregon Rules of Civil Procedure, except that motions or objections relating to discovery shall be determined by the arbitrator. The arbitrator shall balance the benefits of discovery against the burdens and expenses, and shall consider the nature and complexity of the case, the amount in controversy, and the possibility of unfair surprise which may result if discovery is restricted. The arbitrator is empowered to render any sanction available to a judge pursuant to ORCP Rule 46, including the rendering of a default award against the disobedient party (see ASP Rule 45).Filings Relating to Discovery.
Notices of depositions, production and inspection requests pursuant to ORCP 43, and objection and responses thereto, shall not be filed with the arbitrator (see ORCP 9D), unless a ruling on an objection or motion is required. Requests for admissions and responses to such requests shall not be filed with the arbitrator, and shall not be filed with the arbitrator prior to the arbitration hearing unless a prehearing ruling is required on an objection or motion (see ORCP 45).20. Pre-Hearing Statement of Proof.
(Similar to U.T.C.R. 13.170) At least fourteen days prior to the date of the arbitration hearing, each party shall mail to or file with the arbitrator and serve upon all other parties a statement containing a list of witnesses whom the party intends to call at the arbitration hearing, and a list of exhibits and documentary evidence (see Rule 22). The statement shall contain a brief description of the matters about which each witness will be called to testify, the address and telephone number of each such witness and affiant, and whether the witness will testify by telephone. Each party, upon request, shall make the exhibits and other documentary evidence available for inspection and copying by other parties or, if less than 40 pages in total, shall mail copies thereof to the requesting party.A party failing to comply with this rule, or failing to comply with a discovery order may not present at the hearing a witness, exhibit or documentary evidence required to be disclosed or made available, except with the permission of the arbitrator pursuant to Rule 40.
(Similar to U.T.C.R. 13.180)A. Procedure. The arbitrator shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
1. Make the interrogation and presentation effective for the ascertainment of the facts.
2. Avoid needless consumption of time.
3. Protect witnesses from harassment or undue embarrassment.
B. Oaths and Evidence. A witness shall be placed under oath or affirmation by the arbitrator prior to presenting testimony, but the accidental failure to give the oath or affirmation shall not preclude the arbitrator from considering such testimony. If the hearing room has a speaker phone, a witness may testify by telephone, unless the arbitrator finds that this method would be unfair. The arbitrator may question any witness. The extent to which the rules of evidence will be applied shall be in the discretion of the arbitrator. When not testifying, witnesses (other than a party) may be excluded by the arbitrator.
C. Recording. The hearing may be recorded electronically or otherwise by any party or the arbitrator. The cost of such recording is not a recoverable item of cost.
D. Stipulation to Evidence. The parties should stipulate to the admission of evidence when there is no genuine issue as to its relevancy or authenticity.
E. Privacy. Unless otherwise specifically provided by law, the hearing shall be private except to those having a direct interest in the arbitration.
F. Exhibit/Witness List. The arbitrator shall make a record of the names and addresses of the witnesses and the exhibits offered and received.
22. Certain Documents Presumed Admissible.
(U.T.C.R. 13.190)A. The documents listed herein, if relevant, are presumed admissible at an arbitration hearing, but only if:
1. The party offering the document has included in the prehearing statement of proof a description of the document and the name, address and telephone number of its author or maker, at least fourteen days prior to hearing; and
2. The party offering the document similarly has made available, after request, to all other parties all other related documents from the same author or maker.
B. This rule does not restrict argument or proof relating to the weight of the evidence admitted, nor does it restrict the arbitrator's authority to determine the weight of the evidence after hearing all of the evidence and the arguments of opposing parties.
The Documents Presumed Admissible Under this Rule Are:
1. A bill, report, chart or record of a hospital, doctor, dentist, registered nurse, licensed practical nurse, physical therapist, psychologist or other health care provider, on a letterhead or billhead.
2. A bill for drugs, medical appliances or other related expenses on a letterhead or billhead.
3. A bill for, or an estimate of, property damage on a letterhead or billhead. In the case of an estimate, the party intending to offer the estimate shall forward with the notice to the adverse party a statement indicating whether or not the property was repaired, and if it was, whether the estimated repairs were made in full or in part, attaching a copy to the receipted bill showing the items of repair and the amount paid.
4. A police, weather, wage loss, or traffic signal report or standard life expectancy table to the extent it is admissible under the rules of evidence, but without the need for formal proof or authentication or identification.
5. A photograph, x-ray, drawing, map, blueprint or similar documentary evidence, to the extent it is admissible under the rules of evidence, but without the need for formal proof of authentication or identification.
6. The written statement of any other witnesses, including the written report of an expert witness which may include a statement of the expert's qualifications, and including a statement of opinion which the witness would be allowed to express if testifying in person, if it is made by affidavit or by declaration under penalty of perjury.
7. A document not specifically covered by any of the foregoing provisions, but having equivalent circumstantial guarantees of trustworthiness, the admission of which would serve the policies, purposes and interests of justice.
C. Right to Subpoena Author or Maker of Any Document as Witness. Any other party may subpoena the author or maker of a document admissible under this rule, at that party's expense, and examine the author or maker as if under cross-examination.
23. Sanction for Failure to Comply with Arbitration Order.
(U.T.C.R. 13.100(9)) The arbitrator shall have the authority to require a party, an attorney advising each party, or both, to pay the reasonable expenses, including attorney's fees, caused by the failure of such party or attorney, or both, to obey an order of the arbitrator.24. Subpoena and Contempt Power. T
he arbitrator shall have the power granted in ORS 36.335 and 9 USC Sec. 7 to compel the attendance of witnesses duly notified by either party and to enforce from either party the production of all books, papers and documents deemed material to the cause by the arbitrator. (Subpoena forms are available from the office of Paul Pierson.) The arbitrator or a party shall have the right granted in ORS 36.340 and 9 USC Sec. 7 to initiate contempt proceedings against any witness or party refusing to answer a subpoena or obey any lawful order of the arbitrator.25. Failure or Refusal of a Party to Participate; Prima Facie Hearing.
The failure, refusal, or inability of any party to participate in the arbitration process or to attend the hearing, or any portion thereof, or a party's failure to obtain an adjournment or postponement of the hearing or any portion thereof, after due notice thereof, shall not prevent the arbitration process from continuing or prevent the hearing from taking place as scheduled or prevent an award from being rendered. However, the arbitrator shall not render an award except upon evidence made at the hearing sufficient to support the award rendered. Upon the request of any party and at the discretion of the arbitrator, the hearing may be adjourned from time to time. The hearing shall be adjourned upon the joint request of all parties. After each party has stated that it has no further evidence to present, the arbitrator shall declare the hearing closed and may thereupon, at the discretion of the arbitrator, hear oral arguments of the parties. Any party desiring the opportunity to file a post hearing brief shall so state at the conclusion of the hearing and shall file such brief within the time determined by the arbitrator if permission to submit a brief is granted by the arbitrator. A hearing may be reopened prior to the rendering of the award upon the motion of the arbitrator or by the arbitrator upon the application of any party if, in the discretion of the arbitrator, it appears just and proper to do so. The arbitrator shall render an award promptly and shall make every reasonable effort to render the award within fourteen days from the close of the hearing or from the date when any post hearing briefs are due. The arbitrator may grant any relief or remedy deemed by the arbitrator to be just and equitable and which is within the scope of the agreement of the parties, including, but not limited to, equitable relief and the specific performance of a contract, punitive damages (if such are claimed and would be recoverable in an Oregon court), and costs and attorney's fees as authorized in these rules.In dissolution and equity cases, the arbitrator may direct one of the parties to prepare and submit a form of decree, a copy of which shall be served on the other party. Thereafter, the arbitrator, upon request of any party, shall give the parties an opportunity to be heard on the form of the decree. Such hearing may take the form of a telephone conference call to be arranged by the arbitrator. The arbitrator shall then approve a form of decree which, when approved, shall be part of the award.
31. Form of Award and Delivery.
The award shall be in writing and signed by the arbitrator. A signed original of the award shall be served upon each party.32. Adjustment of Fees or Compensation Advanced by Another Party.
Except to the extent that the parties may have otherwise provided by agreement or stipulation, the award of the arbitrator shall acknowledge (to the extent known) the dollar amount of any filing fee or compensation that any party advanced on behalf of another party and shall adjust the award accordingly by an offsetting credit or reimbursing charge.33. Costs and Attorney's Fees.
A. Items Recoverable. The award of the arbitrator may require a party to pay or reimburse any other party for all or any portion of
1) any arbitration filing fee paid or incurred,
2) any arbitrator compensation or arbitrator incurred costs paid or incurred through the date of the award, and/or
3) reasonable attorney's fees, if authorized by contract, or by law, or ordered under Rule 23 (Sanction for Failure to Comply with Arbitration Order).
(Note: Proof of the right to attorney's fees shall be made at the hearing. If allowed, proof of the amount shall be made after the hearing in accordance with Rule 34).
Each party shall bear its own costs of discovery, deposition, and witness fees.
B. Initial Allowance. The award of the arbitrator shall indicate whether any party is being awarded costs and, if so, the award shall state the recoverable dollar amount of the filing fee if the dollar amount thereof is known, and/or the recoverable dollar amount of the compensation of the arbitrator. If the dollar amount of the recoverable filing fee is not known, the award shall state the recoverable cost in percentage form.
The award shall also state whether any party is being awarded reasonable attorney's fees against any other party.
34. Method of Determining Amount of Costs and Attorney's Fees; Supplemental Award.
(Determination of dollar amount is modeled after ORCP 68C(4).)A. Cost Bill. If the primary award indicates that attorney's fees are awarded or that a stated percentage of one party's cost shall be paid by another party, the party being benefited by that portion of the award shall:
1) serve a verified and detailed statement of the amount of attorney's fees and costs upon the party required to pay them, if such party attended the hearing, not later than fourteen days after the award was served on the parties by the arbitrator, and
2) file promptly thereafter with the arbitrator the original statement (with proof of service on all parties attending the hearing).
B. Objections. A party may object to the amount of attorney's fees and costs or any part thereof by mailing to the arbitrator and serving upon the other party written objections to such statement together with any supporting affidavit(s), not later than fourteen days after the service of such statement. Objections shall be specific and may be founded in law or in fact and shall be deemed controverted by the other party. Statements and objections may be amended if the amendment is timely made in the opinion of the arbitrator.
C. Determination of Dollar Amount; Criteria; Hearing. The amount of costs and attorney's fees is in the sole discretion of the arbitrator, who may consider such factors as: whether and when a settlement offer was made and the value of the settlement offer compared to the award granted; whether and the extent to which the party succeeded in a claim or a defense, and the time reasonably expended thereon; the reasonableness of the time expended in relation to the dollar amount of the claim or defense; whether the factual or legal disputes represented close questions; whether the attorney refused to concede matters that ought to have been conceded, resisted matters that should not have been resisted, refused to stipulate to matters that should have and are customarily stipulated to, if such conduct affected the expenditure of attorney time.
The arbitrator shall determine all issues of law or fact raised by the statement and objections and affidavits (if any). Such determination shall be made without a hearing unless a party files with the arbitrator and serves upon the other party a request for a hearing stating why a hearing is necessary and whether it is necessary to present evidence which cannot be submitted in affidavit form. If it is determined by the arbitrator that a hearing is necessary, the hearing shall be scheduled by the arbitrator and, if feasible, shall consist of a telephone conference call among those concerned.
After considering the statement, objections, and any affidavits presented (and after the hearing, if any), the arbitrator shall render a supplemental award, following the same form and procedure for the entry of an award pursuant to Rule 31.
The supplemental award may be confirmed as a judgment pursuant to Rule 36 either separately or
(preferably) together with the primary award.A. Purpose. An award or supplemental award may be amended by the arbitrator to correct an inadvertent miscalculation, description, designation, etc., or a typographical error or misplaced decimal point, or to complete an award that is silent as to an issue which the statement of claim requires the resolution of. An amended award shall not change any decision on its merits.
B. Procedure. A request by a party to correct an award or supplemental award shall be filed with the arbitrator and a copy thereof served upon the other party prior to the entry of a judgment based thereon. If initiated by the arbitrator, the proposed correction shall be served upon all parties by the arbitrator. The other party shall have ten days after service of the proposed correction to file with the arbitrator and serve upon the adverse party any comments with respect thereto.
C. Determination. The arbitrator may, at the discretion of the arbitrator, arrange a telephone conference call concerning the matter, but shall determine the matter without a formal hearing and shall either serve upon each party a denial of the proposed correction or shall render an amended award or amended supplemental award which includes the proposed correction or any portion thereof and which is complete on its face as an award, following the same form and procedure for the entry of an award pursuant to Rule 31.
36. Confirmation of Award by Judgment.
Ten days after the rendering of an award, amended award, supplemental award, or amended supplemental award, any party may apply to any federal or state court having jurisdiction thereof for the confirmation of the award as a judgment of such court. (See ORS 36.350 and 9 USC Sec. 9.) After the arbitration proceeding has been concluded, the arbitrator or chief arbitrator shall return the exhibits to the party offering them. If it is too expensive or inconvenient to return the exhibits by mail, a party shall have the duty of reclaiming them within thirty days after written notice from the arbitrator. (It is suggested that a party should authorize the destruction of all exhibits which are copies of originals.)38. Interpretation and Application of Rules. These
rules shall be interpreted and applied by the arbitrator.39. Modification of Rules by Stipulation.
The parties may by stipulation or prior agreement agree to waive or modify any of these rules except to the extent precluded by law and except that no stipulation shall reduce the fees or compensation to be paid to the arbitrator, nor restrict the time allotted herein for the doing of any act by the arbitrator without the consent thereof. Any such stipulation shall be in writing and signed by the parties or their attorneys or it shall be stated orally by the parties or their attorneys during the hearing.40. Relief from Rules/Acquiescence to Non-Compliance with Rules.
The purpose of these procedural rules is to ensure the prompt and efficient resolution of disputes, but these rules are not intended to elevate form over fairness. The failure of a party to strictly comply with an arbitration rule (including the time deadlines imposed by any arbitration rule) may be excused (wholly or partially) if the interests of justice so require after assessing and balancing all relevant factors, including: whether and the extent to which a party would be unfairly prejudiced if strict compliance was excused or required; whether such failure has or would impose an unfair delay, burden, or expense upon another party; whether the failure arose because of excusable neglect, inadvertence, surprise, or inexperience; whether excusing a non-compliance should require a payment that will fairly compensate a party for any expense incurred because of the non-compliance. If any party knows that any of these rules are not being complied with, such party shall be deemed to have waived any objection to such non-compliance unless such party notifies the arbitrator in writing as soon as practicable after acquiring such knowledge.41. Application of Oregon and Federal Arbitration Acts; Litigation.
Any arbitration conducted under these rules is subject to the provisions of Oregon's private arbitration statute (ORS 36.300 through ORS 36.365) and the Federal Arbitration Act (9 USC Sections 1-14), whichever statute applies, except that these rules shall govern in the event of any conflict between these rules and such statute. A party shall have the right to file in the proper court exceptions to the award for the limited reasons enumerated in such statute, and to seek the modification, correction, or vacation of the award to the extent authorized in such statutes, and the right to appeal any judgment entered after such objection to the extent authorized by such statutes. The arbitrator in any proceeding under these rules is not a necessary party in judicial proceedings that relate to the arbitration.42. Non-Liability of the Arbitrator.
The arbitrator shall not be liable to any party for any act or omission in connection with any arbitration conducted under these rules.43. Provisional Process/Construction Lien Rights Preserved.
Nothing in these rules shall preclude a party from seeking or utilizing any provisional process remedy or protective device described in Rules 79 through 85 of the Oregon Rules of Civil Procedure (or their federal statutory equivalents), including a restraining order, attachment, or appointment of receiver, to the extent any such remedy is allowed in the agreement upon which the party relies or is otherwise permitted by law, in order to permit such party to preserve property or to protect such party's interest pending the initiation and/or outcome of the arbitration, nor shall these rules preclude a party from filing a statutory construction lien or from commencing suit to foreclose such lien (provided that the trial of such foreclosure suit shall be stayed until the rendering of the arbitration award, which shall be binding in such foreclosure suit as to all matters determined in arbitration, and the lien may then be foreclosed to the extent permitted by law), and any such conduct described in this paragraph (whether exercised before or after filing an arbitration) shall not be deemed a waiver of such party's rights to arbitrate pursuant to an arbitration agreement.44. Default Procedures Against Non-Responding Party.
A. When Available. If the respondent fails to file a responsive pleading within the time allowed in Rule 6, and the claimant advises the arbitrator’s office (orally or in writing) that the claimant believes that the respondent will not contest the claim, the claim may be resolved pursuant to the default procedures set forth in this rule notwithstanding any other rule to the contrary.
B. Special Warning Notice Required. Claimant shall complete and serve on the respondent, in the manner provided in 44C, a "Notice of Proposed Default" form, which warns that a failure to file a responsive pleading within (an additional) ten days may result in an award being rendered against such party, that the claim can be heard and an award rendered without further notice to the respondent, that the law permits the award to be confirmed as a judgment of the court, and that further information and a copy of the arbitration rules can be obtained by contacting Paul Pierson’s office. Claimant shall include with said notice a copy of the statement of claim and a copy of the agreement authorizing or mandating arbitration.
C. Service of Notice. The claimant shall cause the Notice of Proposed Default, statement of claim, and agreement to arbitrate to be served on the respondent in accordance with the provisions of Rule 7D of the Oregon Rules of Civil Procedure for the service of a summons.
D. Procedure Upon Default. If the respondent fails to return to the arbitrator a responsive pleading within the ten-day period specified in the Notice of Proposed Default, the respondent shall be deemed in default. The arbitrator shall sign an oath as required by Rule 11 and proceed to determine the claim in accordance with Rule 44E upon oral or written request by the claimant.
E. Determination of Claim. The claimant may contact the arbitrator to discuss setting a prima facie hearing date as soon as is mutually convenient. At any time prior to the hearing date, the claimant may submit to the arbitrator such documentary evidence described in Rule 22B to support the claim (including any claim for attorney's fees to the extent recoverable under Rule 33A), and the arbitrator shall do one of the following:
1. Render an award for the full amount of the claim (and, if requested and recoverable, attorney's fees for a reasonable amount as determined by the arbitrator) if the arbitrator concludes that the documentary evidence supports such an award (and attorney's fees), in which event the review of such evidence by the arbitrator shall be deemed the hearing. The arbitrator may discuss the documentary evidence with the claimant or claimant's attorney by telephone.
2. Wait until the hearing to consider additional evidence, and thereafter render an award. No prehearing statement of proof is necessary and it shall not be necessary to serve such documentary evidence on the respondent (as otherwise required by Rules 20 and 22).
F. Affidavit of Compliance with Default Notice Requirements. No award shall be entered unless claimant submits to the arbitrator an affidavit of proof of service (on an arbitration form) that the warning notice required by paragraph B of this rule has been served as required by paragraph C of this rule.
G. Compensation of Arbitrator. The claimant shall pay to the arbitrator the rate of compensation specified in Rule 15A or a minimum fee of $150, whichever sum is the greater. The arbitrator may require an adequate deposit of such compensation prior to the hearing or the rendering of the award.
45. Default Procedures Against a Non-Complying or Non-Appearing Party or in a Non-Contested Dispute.
A. When Available. Default procedures under this rule are available in the following instances:
1. If a party has been found by the arbitrator to have not complied with a discovery request to such an extent that the arbitrator has determined and ruled that the sanction of rendering a default award against the respondent is appropriate (See Rule 19). The party seeking
default shall file with the arbitrator a Request for Summary Determination, and shall serve a copy thereof on the party against whom the default award sanction has been imposed; or2. The respondent has decided to not contest the claim. Claimant shall file with the arbitrator an affidavit signed by claimant or claimant's attorney, stating that Respondent or Respondent's attorney recently stated that Respondent: a) does not intend to contest the claim, or b) does not intend to appear at the hearing (and, if Respondent or Respondent's attorney has signed a written statement to that effect, claimant shall attach to the affidavit said written statement, if any). The claimant shall file with the arbitrator a simple Request for Summary Determination of claim, accompanied by the above affidavit, and shall serve on the respondent a copy of said request and said affidavit.
B. Summary Determination of Claim. At any time after a Request for Summary Determination of claim has been filed, the requesting party may contact the arbitrator to discuss setting a prima facie hearing date as soon as mutually convenient (in advance of any previously set hearing date), and, thereafter, may submit to the arbitrator such documentary evidence described in Rule 22B to support the claim or default award (including any claim for attorney's fees to the extent recoverable under Rule 33A). The Respondent may send to the arbitrator any documentary evidence described in Rule 22B. The arbitrator shall do one of the following:
1. Render an award for the full amount of the claim (and, if requested and recoverable, attorney's fees for a reasonable amount as determined by the arbitrator) if the arbitrator concludes that the documentary evidence supports such an award (and attorney's fees), in which event the review of such evidence by the arbitrator shall constitute the hearing. The arbitrator may by telephone discuss the documentary evidence with the claimant or claimant's attorney (or with Respondent or Respondent's attorney, if Respondent has submitted such evidence).
2. Wait until the hearing to consider additional evidence, and thereafter render an award. No prehearing statement of proof is necessary and it shall not be necessary to serve such documentary evidence on the respondent (as otherwise required by Rules 20 and 22).
C. Affidavit of Compliance of Service Requirements. No award shall be entered unless the arbitrator has received the affidavit of proof of service of the Request for Summary Determination (as required in subparagraph A of this rule).
D. Compensation of Arbitrator. The claimant shall pay to the arbitrator the rate of compensation specified in Rule 15A or a minimum of $150, whichever sum is the greater. The arbitrator may require an adequate deposit of such compensation prior to the hearing or the rendering of the award.