Mediation and Arbitration

ORS 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 (Mandatory arbitration programs) to 36.425 (Filing of decision and award) 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 (Judgment in civil action that includes money award).
(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 (Trial fees).

(c)

A party filing a written notice under paragraph (a) of this subsection shall deposit with the clerk of the court the sum of $159. 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 (Referral to mandatory arbitration) (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 (Referral to mandatory arbitration) (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 (Referral to mandatory arbitration) (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; 2019 c.605 §25]
OREGON INTERNATIONAL COMMERCIAL ARBITRATION AND CONCILIATION ACT

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)

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Last accessed
Mar. 11, 2023

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