Arbitration & Mediation

Tim is a trained and experienced arbitrator and mediator.  He is on court arbitration panels in several counties and a volunteer mediator with Multnomah County Small Claims Court.

What is arbitration?

Oregon, like many other states, requires that lawsuits with damages alleged under a certain amount be referred to non-binding arbitration.  In Oregon, the amount is $50,000 or less.  Once an answer is filed in those cases, the court will refer it to court-annexed arbitration.  Each county has a list of lawyers who have been approved as arbitrators, and upon referral, a list of potential arbitrators will be sent to the parties’ attorneys.  The specific selection mechanism varies by county, but the attorneys can either select an arbitrator from the list or stipulate to one off the list.  Uniform Trial Court Rule (UTCR) 13 governs procedures once the case is referred to arbitration.  In general, the arbitrator handles the case from that point through the time that the award is entered.  14 days before the hearing date, a pre-hearing statement of proof must be served on the other party and arbitrator.  The hearing is less formal than a trial and is considerably shorter.  Rules of evidence are often relaxed.  If either party is dissatisfied with the arbitration award, that party may appeal it and request a trial de novo (a jury trial), within 20 days of the filing of the award.  There are financial penalties if the party does not improve its position in the jury trial.

 Insurance policies and other contracts often provide for binding arbitration, rather than proceeding to trial.  In addition, parties sometimes agree to binding arbitration as an alternative to trial, sometimes with agreements as to the amount that can be awarded (high-low agreements).  These can be with either single arbitrators or a 3-member panel.

What is mediation?

Mediation is a voluntary and confidential method of dispute resolution.  Parties in litigation are often focused on the conflict, and how they are going to win the dispute.  In mediation, the parties are encouraged, with the assistance of a trained mediator, to see the other party’s point of view and work toward a common goal of an early, inexpensive and custom-crafted resolution of the dispute.  Because the process is voluntary, the parties are empowered to resolve the dispute, and to be able to recognize and acknowledge differing viewpoints.   Mediation is often utilized to resolve difficult cases.  A professional mediator, often an attorney, agreeable to both parties is hired and conducts the mediation in one or more sessions.

 Everything said in mediation is held confidential by the participants and cannot be used for any purpose in any legal proceeding.  Exceptions are: to prevent a party from committing a crime likely to result in death or substantial bodily injury to a specific person; if a mandatory reporter of child abuse hears information that gives him/her reasonable cause to believe that a child has been abused, he/she must report it to the proper authorities.

 A common form of mediation in the litigation context is shuttle negotiation.  The parties and their attorneys are placed in separate rooms, with the mediator shuttling back and forth between the rooms.  Sometimes there is an initial joint session, but often the parties never meet.  This method is common in civil litigation, where the issue is primarily financial.  Where there are interpersonal issues (such as neighbor-neighbor and landlord-tenant), table mediation may be more effective.  In this method, the parties sit across a table from each other, with one or two mediators.  All discussions and negotiations are done with everyone present, unless there is a caucus, in which the mediator meets separately with the parties.

 

Comments from mediation participants: