Use of binding arbitration and contested case hearings
- • rules
(1) Subject to subsection (4) of this section, if the resolution of a complaint under ORS 701.145 (Resolution of complaints involving work on residential structures or certain small commercial structures) requires a hearing, the Construction Contractors Board may require that the hearing be conducted as a binding arbitration under rules adopted by the board under subsection (3) of this section. This subsection does not authorize the board to require binding arbitration of a complaint that is subject to ORS 701.146 (Resolution of complaints involving work on large commercial structures or certain small commercial structures).
(2) The board may use mediation or arbitration to resolve a construction dispute between any parties who agree to follow the rules of the board, other than a dispute involving work on a large commercial structure.
(3) Except as provided in this subsection, rules adopted by the board to regulate arbitration under subsections (1) and (2) of this section must substantially conform with the provisions of ORS 36.600 (Definitions), 36.610 (Effect of agreement to arbitrate) to 36.630 (Provisional remedies), 36.635 (Initiation of arbitration) (2), 36.640 (Consolidation of separate arbitration proceedings), 36.645 (Appointment of arbitrator) (2), 36.650 (Disclosure by arbitrator) to 36.680 (Judicial enforcement of preaward ruling by arbitrator), 36.685 (Award) (1) and 36.690 (Change of award by arbitrator) to 36.740 (Relationship to electronic signatures in Global and National Commerce Act). The rules may:
(a) Require that a hearing under ORS 183.413 (Notice to parties before hearing of rights and procedure) to 183.470 (Orders in contested cases) be conducted for issues for which a petition could be filed under ORS 36.615 (Application for judicial relief), 36.620 (Validity of agreement to arbitrate), 36.625 (Petition to compel or stay arbitration) and 36.640 (Consolidation of separate arbitration proceedings);
(b) Limit orders and awards made by the arbitrator as necessary to comply with this chapter;
(c) Require that a request that an arbitrator modify or correct an award under ORS 36.690 (Change of award by arbitrator) be submitted in a form specified by the rule;
(d) Require that a petition under ORS 36.705 (Vacating award) (2) or 36.710 (Modification or correction of award) (1) be filed in a shorter period of time than provided by ORS 36.705 (Vacating award) and 36.710 (Modification or correction of award); and
(e) Include any other provision necessary to conform the arbitration to this chapter.
(4) A party to a complaint that is subject to a board order of binding arbitration under subsection (1) of this section may avoid the arbitration if the party requests to have the complaint resolved through a contested case hearing or files a court action. A party making a hearing request or filing a court action under this subsection is subject to the following provisions:
(a) If the party requests to have a complaint resolved through a contested case hearing, the party must, within the time specified in paragraph (c) of this subsection, deliver the request in writing to the board and to all parties entitled by board rule to receive a copy of the request.
(b) If the party files a court action, the party must, within the time specified in paragraph (c) of this subsection, deliver a copy of the party’s court pleading to the board and to all persons entitled by board rule to receive a copy of the pleading. If the party filing the court action is the complainant to the board, the complainant must plead all facts and issues of the board complaint in the court action. If the court action is filed by the contractor against whom a board complaint is alleged, the court action must be an action for damages, an action for declaratory judgment or another action that allows the board complainant to file a response pleading all facts and issues of the board complaint. The board complainant has the burden of proving the elements of the board complaint in a court action described in this paragraph.
(c) A party that is subject to paragraph (a) or (b) of this subsection must deliver the contested case hearing request or the copy of the party’s court pleading to the board as described in paragraphs (a) and (b) of this subsection no later than the 30th day after the board sends notice that an arbitration hearing has been scheduled. Failure to timely deliver a request or court pleading under this paragraph constitutes consent to the binding arbitration.
(d) If a party makes a timely request under paragraph (a) of this subsection for a contested case hearing and another party timely files a court action and complies with paragraph (b) of this subsection, the filing of the court action supersedes the request for a contested case hearing.
(e) A party may not withdraw a request made in compliance with paragraph (a) of this subsection unless all parties agree to the withdrawal.
(f) The board may adopt a rule that a contested case hearing for a complaint seeking less than $1,000 is not available under this subsection.
(g) The provisions of paragraph (b) of this subsection are in addition to any other requirements imposed by law regarding the filing of a court action.
(5) The board may refuse to accept a dispute for mediation or arbitration under subsection (1) or (2) of this section if the board determines that the nature or complexity of the dispute is such that a court or other forum is more appropriate for resolution of the dispute. [2011 c.630 §58]
Note: 701.144 (Use of binding arbitration and contested case hearings) becomes operative July 1, 2017, and applies to complaints filed on or after July 1, 2017. See section 73, chapter 630, Oregon Laws 2011.
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