Judge Penn provided an overview of the requirements to become an arbitrator in Marion County, focusing on UTCR Chapter 13, Supplemental Local Rule Chapter 13, and ORS chapter 36.400 to 36.425. He explained that applicants to become an arbitrator in Marion County must demonstrate five years of practice in good standing with the state bar; must provide three letters of recommendation; and must have participated in at least 10 trials or arbitrations in the practice area for which the applicant seeks to become an arbitrator. There are three arbitration panels in Marion County: domestic relations, personal injury, and commercial/real estate.
Michelle, a court-approved arbitration on the Marion County commercial/real estate panel, noted that each county has different requirements to qualify as an arbitrator and discussed some of those requirements. For instance, some counties require observation of arbitrations rather than participation. Michelle reported that Multnomah County requires arbitrator candidates to participate in a one-half day CLE that instructs arbitrators on topics including scheduling arbitrations and providing notice of arbitrations. She found the CLE to be very helpful.
Judge Penn reported that there has been some discussion by the dispute resolution commission and Marion County judges of amending the requirements to becoming an arbitrator. The focus of the discussion has been to consider an alternative experience requirement(s) that would allow individuals with other types of experience to become arbitrators. For instance, pro tem experience might be considered as relevant experience. Judge Penn noted that the commission values experience and attributes the very low (five percent) appeal rate from arbitrations in Marion County to the quality and experience of arbitrators in Marion County.
The panelists discussed when arbitration is required as well as considerations of when to select arbitration. Judge Penn stated that some cases are required to go through court-assisted arbitration, such as cases involving $50,000 or less. If a party fails to appear for court-assisted arbitration, the party may be subject to certain fees following trial depending on the outcome at trial. Dave suggested that, when a matter involves unusual or novel legal issues, it may be preferable to stay in court rather than to select private arbitration because there is no right to appeal from private arbitration except in very limited circumstances. He suggested that, when the question is one of damages, arbitration might be preferable to a jury trial because it will typically achieve more predictable results.
Michelle and Dave discussed considerations in selecting an arbitrator. Both agreed that it is important to inquire about a potential arbitrator’s reputation. Michelle suggested that, if possible, parties may want to stipulate to an arbitrator and also check with the arbitrator to confirm his or her availability. Michelle suggested that, in the realm of court-assisted arbitration, she might allow the court to select the arbitrator if the parties could not agree. With court-assisted arbitration, the parties have the right to appeal from the arbitration.
Dave suggested several considerations in selecting an arbitrator: (1) the availability of the arbitrator; (2) the arbitrator’s expertise in the field, noting that an arbitrator with expertise in a particular area of law may be beneficial in some matters, but an arbitrator with expertise may also have preconceived notions about that area of law or the issue presented; (3) the personality of the arbitrator and whether it would be a good fit with the client; and (4) whether to use one arbitrator or a three-arbitrator panel.
Dave described his experience as a private arbitrator with the Arbitration Service of Portland. In arbitrations through the Arbitration Service of Portland, a sole arbitrator decides disputes that do not exceed $75,000 and a three-person panel decides disputes over $75,000, unless the parties agree otherwise. Arbitrators selected through Arbitration Service of Portland may not charge more than $200 per hour for their services. Dave stated that arbitrators must disclose to the parties any information that they parties might reasonably want to know, such as the arbitrator’s relationship with a party or an attorney. In his capacity as a private arbitrator, he typically provides written decisions setting forth his reasoning.
The panelists discussed tips for becoming an arbitrator. The panelists all emphasized the importance of reputation and word of mouth recommendations. Michelle gained experience with contract disputes by handing hundreds of collections cases as well as taking cases on contingency. She suggested the modest means program as another way for newer lawyers to gain trial and arbitration experience. The panel noted that attorneys wishing to become arbitrators may start out in a county with less stringent experience requirements than Marion County. Judge Penn reported that arbitrators are required by statute to provide notice of the court of the date and time of arbitration. The court publishes notice on its website. Those wishing to observe arbitration typically may do so. Dave offered to arrange for attorneys interested in arbitration to observe one of his arbitrations. Judge Penn noted that experience as second chair in an arbitration may be pertinent experience.