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Process for filing for arbitration for commercial lease in Oregon?
Submitted: 1 year ago.Category: Landlord-Tenant
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9/12/2016
Lawyer: Attorney2, Attorney replied 1 year ago
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Lawyer: Attorney2, Attorney replied 1 year ago

Does the contract set out who you need to use for arbitration?

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Lawyer: Attorney2, Attorney replied 1 year ago

"Arbitration is a procedure, much like a trial but less formal. Instead of a decision being made by a judge or jury, an arbitrator hears the evidence and makes a decision. Like a judge, an arbitrator makes rulings on motions, decides the order in which witnesses appear and the testimony they give, and may impose penalties on a party who disobeys the arbitrator’s orders. Like a jury, an arbitrator, after hearing the evidence, decides which side wins and which side loses and what the result will be.

Some contracts, including some real estate, consumer and employment contracts, require that the parties arbitrate their disputes before — or instead of — taking their case to court. Some people choose to arbitrate rather than go to court because they can agree they want a quicker decision with less expense. Sometimes arbitration is required by the courts when someone files a case.

When is arbitration mandatory?

Oregon’s circuit courts require arbitration in two kinds of cases. The first kind is a civil lawsuit. A civil lawsuit is a case where one party, the plaintiff, is suing another person or corporation, the defendant, for money. Examples include a personal injury case from an automobile accident, a disagreement about a contract, or some other type of case that doesn’t involve criminal charges. In civil cases, the lawsuit goes into arbitration depending on the amount of money the plaintiff is asking for — $50,000 or less, excluding court costs and attorney fees.

In some counties, local court rules allow parties to choose mediation rather than arbitration if all sides agree.

The second kind of case that goes into arbitration is a domestic relations or family law case, where the parties are arguing about something other than custody or support. An example is a case where the husband and wife cannot agree on how to divide their property and their debts. In some counties, the parties agree to arbitrate disagreements about support as well.

Local court rules may allow parties to choose mediation rather than arbitration if all sides agree.

Who is an arbitrator?

In the state court system, an arbitrator is a lawyer who has been admitted to practice for at least five years. The arbitrator is either chosen by the parties and their attorneys or selected by a judge or court clerk.

How does a case end up in arbitration?

The court orders a case into arbitration. Once the court order is entered, the court provides a list of arbitrators, and the parties can either select an arbitrator from the list or choose someone that both sides trust to make fair decisions.

What is the cost of arbitration?

The cost of arbitration is different in each county. However, each side typically pays half of the arbitration fee, which on average is usually around $150 per hour of the arbitrator’s time. Usually, the parties must send a deposit to the arbitrator when the arbitrator is selected, and the whole fee must be paid before the hearing. Most courts limit the total amount of the arbitrator’s fee, unless the case is so complicated or time-consuming that the arbitrator should be paid more. Usually, the party who loses the case must repay the other side for its share of the arbitration fee. Of course, each side must pay his or her own lawyer fees, and the arbitrator may, in certain types of cases, order the losing side to pay the winning side’s lawyer fees.

If either or both parties are unable to afford the cost of an arbitrator, a judge may waive the arbitrator’s fee, in which case the state pays the arbitrator. The judge also may defer the fees until the winner has been determined, and then the fees are paid by the losing party.

How does arbitration work?

Arbitration is a way to keep the cost of lawsuits down and shorten the time it takes for a case to get resolved. The arbitrator decides when motions and hearings are set. Generally, the case will have a hearing within 7 weeks from the day the arbitrator is chosen. Before the hearing, each side must give the arbitrator a list of the witnesses who will testify at the arbitration hearing and a description of any evidence that will be presented.

An arbitration hearing is more informal than a court proceeding, but the arbitrator is required to have witnesses swear that their testimony is true and allow the parties or their lawyers to ask questions and introduce evidence. The arbitrator may ask questions of the witnesses or require that the parties or their lawyers submit other evidence after the hearing. An arbitrator may also delay or continue a hearing to give each side a chance to get its entire case presented. Because the rules of evidence are less strict in arbitration than in a trial, the parties may be able to save the cost of paying witnesses, such as doctors and other experts, by submitting their written reports instead. Despite the relative informality of arbitration, parties should prepare their cases fully, just as they would for trial.

An arbitrator should issue a decision within 20 days after the hearing is finished.

Can an arbitrator decision be appealed?

In most cases, the decision of the arbitrator is either accepted by both sides, or both sides decide to settle the case. If either side does not want to accept the arbitrator’s decision, the case may go back before a judge or jury for a decision. A party wishing to appeal the arbitration award must do so within 20 days after the arbitration award is filed with the court, and must also pay $150 to the clerk of the court.

The case then goes to trial. The judge or the jury deciding the case does not know what the arbitrator decided. The party who ultimately loses the case may still be required to pay the winner’s share of the arbitration fees. If an appealing party does not get a better result in the judge or jury trial, that party will lose the $150 it paid to have the appeal." https://www.osbar.org/public/legalinfo/1216_MandatoryArbitration.htm

This link sets out process http://www.sglaw.com/wp-content/uploads/Overview_of_the_Arbitration_Process.pdf

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Lawyer: Attorney2, Attorney replied 1 year ago

There are two types of arbitration:

"Mandatory: Arbitration is required by law for some court cases. State law requires that some cases filed in state courts go to mandatory arbitration.

Voluntary: Parties may agree to arbitration before or after filing a court case, or may have a contract that requires them to arbitrate disputes.

Who is an arbitrator?

In mandatory arbitration, an arbitrator can be either a lawyer or a non-lawyer. The parties get to choose the arbitrator. However, if they cannot agree, the court selects an arbitrator. Arbitrators are required to take an oath and follow the same ethical rules as a judge.

In mandatory arbitration, one arbitrator will hear a case alone. In voluntary arbitration, the parties may choose whether there will be a single arbitrator or a panel of arbitrators. Typically, arbitration panels include 3 arbitrators, although there may be more or less depending on the agreement between the parties.

What kind of cases go into arbitration?

Two kinds of cases go into arbitration under state law:

  • Some civil actions involving claims for damages or money, and
  • Some family law matters.

In a civil case, one person or business sues another person or business, usually for money damages. A civil case might be about costs and injuries from an accident, or a disagreement about a contract. All civil cases filed in state court involving less than $50,000, except small claims cases, must go to arbitration. In some courts, parties can go to mediation instead of arbitration.

State law also requires arbitration in domestic relations or family law cases where the parties only disagree about what to do with their property and their debts. In some counties, the parties can also agree to arbitrate disagreements about child or spousal support.

Parties may choose arbitration in other kinds of cases, before or after filing a case in court. Criminal cases do not go to arbitration.

How does a case end up in mandatory arbitration?

After all of the parties have appeared, the court orders a case into arbitration and provides the parties a list of arbitrators. All of the arbitrators on the court’s list are lawyers who are in good standing with the Oregon State Bar and who have been admitted to practice for at least 5 years. The parties can either select an arbitrator from the list, or choose someone else that both sides trust to make fair decisions. If the parties cannot agree on an arbitrator, the court will choose one for them. An arbitrator has to be named by either the parties or the court within 21 days after the case is ordered into arbitration.

What is the cost of mandatory arbitration?

The cost of arbitration is different in each county. Each side typically pays half the arbitration fee, which is usually $50 to $125 per hour for the arbitrator's time. Usually, the parties must send a deposit to the arbitrator when the arbitrator is selected, and must pay the whole fee before the hearing. Most courts limit the total amount of the arbitrator's fee to $500 or less, unless the case is so complicated or time-consuming that the arbitrator should receive more.

Usually, the party who loses the case must repay the other side’s fees and costs, including their share of the arbitration fee. Each side must pay its own lawyer fees. In certain cases, the arbitrator may order the loser to pay the winner’s lawyer fees. Arbitrators can also order that a party pay additional costs and fees in certain circumstances.

If a party is unable to afford the cost of an arbitrator, a judge may waive some or all of the arbitrator's fee, in which case the state pays that amount. The judge also may defer the fees until the winner has been determined, and then the losing party pays the fees.

How does arbitration work?

After an arbitrator is chosen, he or she will make procedural decisions. If the parties do not agree what evidence can be submitted, or other procedural questions, the arbitrator will decide those issues. The arbitrator will tell the parties when documents are due and when hearings will be held. If one side asks for arbitration to be delayed to have more time to get ready, the arbitrator will decide whether the delay is fair to both sides.

In mandatory court arbitration, the case will usually have a hearing within 7 weeks after the arbitrator is chosen. An arbitrator should issue a decision within 20 days after the hearing is finished. In voluntary arbitration, a contract or other agreement of the parties may set the timelines.

Before the hearing, each party must give the arbitrator and the other side a list of witnesses who will testify at the arbitration hearing and a description of any evidence the party will present. Each party must also give the other side contact information for all witnesses and documents and let the other side see and copy any documents they plan to use as evidence before the hearing.

Arbitration hearings are not usually recorded by a court reporter or on a tape. If one party wants a recording of the arbitration, they will have to pay for it.

Witnesses
At the hearing, witnesses are sworn in, just like in court. Then, the parties or their lawyers can ask questions and introduce evidence. The arbitrator may ask the witnesses questions. Sometimes the arbitrator will accept written statements from witnesses instead of having those people appear in person at the arbitration.

Other evidence
The arbitrator may accept other evidence from the parties or their lawyers. If the arbitrator thinks something important is missing, he or she may schedule another hearing or ask the parties or their lawyers to submit other evidence after the hearing.

Talking to the arbitrator
Like a judge, the arbitrator cannot talk to one side about the case without the other side there. There are some exceptions, like if the other side agrees that it is okay for the arbitrator to talk to you, or if the other side does not show up to a hearing.

No one can tell the arbitrator about any offers to settle the case unless all of the parties agree.

Can an arbitrator’s decision be appealed?

In most mandatory arbitration cases, the parties accept the arbitrator’s decision or they agree to settle the case. If a party wants to appeal the arbitrator's decision, the case may go back to court for a judge or jury to decide. An appeal must be filed within 20 days after the arbitration award is filed with the court. There is $150 filing fee to appeal an arbitration award.

When the case goes to trial, the judge or the jury does not know what the arbitrator decided. The party who loses the case in court may have to pay the winner's share of the arbitration fees. The party who wins the case in court may also have to pay the other side’s filing fee for the appeal if they were the one who appealed the decision and they did not get a better result from the court than they did in the arbitration.

In voluntary arbitration, the parties must agree in advance about all the arbitration rules and procedures. This includes when and how parties can appeal an arbitrator’s decision. Often, the parties have a contract that includes these terms." http://courts.oregon.gov/OJD/programs/adr/pages/whatisarbitration.aspx#work

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Lawyer: Attorney2, Attorney replied 1 year ago

What kind of case is this? Is it mandatory? Where in Oregon so I can provide a link for local assistance? Can you attach the contract?

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