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SUPERIOR COURT
MANDATORY ARBITRATION RULES (MAR)
TABLE OF RULES
1. SCOPE AND PURPOSE OF RULES
Rule
1.1 Application of Rules
1.2 Matters Subject to Arbitration
1.3 Relationship to Superior Court Jurisdiction and Other Rules
2. TRANSFER TO ARBITRATION AND ASSIGNMENT
OF ARBITRATOR
2.1 Transfer to Arbitration
2.2 Court May Determine Arbitrability
2.3 Assignment to Arbitrator
3. ARBITRATORS
3.1 Qualifications
3.2 Authority of Arbitrators
4. PROCEDURES AFTER ASSIGNMENT
4.1 Restrictions on Communication Between Arbitrator and Parties
4.2 Discovery
4.3 Subpoena
5. HEARING
5.1 Notice of Hearing
5.2 Prehearing Statement of Proof
5.3 Conduct of Hearing--Witnesses--Rules of Evidence
5.4 Absence of Party at Hearing
6. AWARD
6.1 Form and Content of Award
6.2 Filing of Award
6.3 Judgment on Award
6.4 Costs and Attorney Fees
7. TRIAL DE NOVO
7.1 Request for Trial de Novo
7.2 Procedure After Request for Trial de Novo
7.3 Costs and Attorney Fees
8. GENERAL PROVISIONS
8.1 Stipulations
8.2 Local Rules
8.3 Effective Date
8.4 Title and Citation
8.5 Status of Comments
RULE 1.1
APPLICATION OF RULES
These arbitration rules apply to mandatory arbitration of civil actions
under RCW 7.06. These rules do not apply to arbitration by private
agreement or to arbitration under other statutes, except by stipulation
under rule 8.1.
RULE 1.2
MATTERS SUBJECT TO ARBITRATION
A civil action, other than an appeal from a court of limited
jurisdiction, is subject to arbitration under these rules if the action is
at issue in a superior court in a county which has authorized mandatory
arbitration under RCW 7.06, if (1) the action is subject to mandatory
arbitration as provided in RCW 7.06, (2) all parties, for purposes of
arbitration only, waive claims in excess of the amount authorized by RCW
7.06, exclusive of attorney fees, interest and costs, or (3) the parties
have stipulated to arbitration pursuant to rule 8.1.
RULE 1.3
RELATIONSHIP TO SUPERIOR COURT JURISDICTION
AND OTHER RULES
(a) Superior Court Jurisdiction. A case filed in the superior court
remains under the jurisdiction of the superior court in all stages of the
proceeding, including arbitration. Except for the authority expressly given
to the arbitrator by these rules, all issues shall be determined by the
court.
(b) Which Rules Apply.
(1) Generally. Until a case is assigned to the arbitrator under rule
2.3, the rules of civil procedure apply. After a case is assigned to the
arbitrator, these arbitration rules apply except where an arbitration rule
states that a civil rule applies.
(2) Service. After a case is assigned to an arbitrator, all pleadings
and other papers shall be served in accordance with CR 5 and filed with the
arbitrator.
(3) Time. Time shall be computed in accordance with CR 6(a) and (e).
(4) Voluntary Dismissal. The arbitrator shall have the power to dismiss
an action, under the same conditions and with the same effect as set forth
in CR 41(a), at any time prior to the filing of an award.
RULE 2.1
TRANSFER TO ARBITRATION
The point at which a case is transferred to arbitration and the
procedures for accomplishing the transfer to an arbitration calendar shall
be established by local rule adopted in accordance with rule 8.2.
RULE 2.2
COURT MAY DETERMINE ARBITRABILITY
(a) Generally. The court may, on its own motion or on motion of a
party, determine whether a case is actually subject to arbitration under
RCW 7.06.020 and rule 1.2 and may accordingly order a case transferred to
or from the arbitration calendar. Only in extraordinary circumstances after
a case has been assigned to an arbitrator under rule 2.3 will the court
order a case returned from the arbitration calendar to the trial calendar.
(b) Effect on Right To Appeal. If a party asserts a claim which
disqualifies a case for arbitration but the court nevertheless orders a
transfer to arbitration under section (a), any party is deemed aggrieved
under rule 7.1 if the arbitrator awards less than the party's original
claim.
RULE 2.3
ASSIGNMENT TO ARBITRATOR
(a) Generally. The parties may select an arbitrator by stipulation. If
an arbitrator is not chosen by stipulation within 14 days after a case has
been placed on the arbitration calendar, the court shall promptly select an
arbitrator and notify the arbitrator and the parties of the assignment. The
case is deemed assigned for purposes of rule 1.3 upon the final selection
of the arbitrator under this rule.
(b) Communication With Potential Arbitrator Restricted. The
restrictions on communication defined by rule 4.1 apply to communication
with a person under consideration as a possible arbitrator in a case.
MAR 3.1
QUALIFICATIONS
Unless otherwise ordered or stipulated, an arbitrator must be a member of
the Washington State Bar Association who has been admitted to the Bar for a
minimum of 5 years, or who is a retired judge. The parties may stipulate to a
nonlawyer arbitrator.
To qualify as an arbitrator, a person must sign and file an oath of office,
either to serve in a particular case, or as a member of a panel of arbitrators.
The court is authorized to remove an individual from a list of qualified
arbitrators for good cause.
[Effective July 1, 1980. Amended effective September 1, 2008.]
RULE MAR 3.2
AUTHORITY OF ARBITRATORS
(a) Authority of Arbitrator. An arbitrator has the authority to:
(1) Decide procedural issues arising before or during the arbitration
hearing, except issues relating to the qualifications of an arbitrator;
(2) Invite, with reasonable notice, the parties to submit trial briefs;
(3) Examine any site or object relevant to the case;
(4) Issue a subpoena under rule 4.3;
(5) Administer oaths or affirmations to witnesses;
(6) Rule on the admissibility of evidence under rule 5.3;
(7) Determine the facts, decide the law, and make an award;
(8) Award costs and attorney fees as authorized by law; and
(9) Perform other acts as authorized by these rules or local rules adopted
and filed under rule 8.2.
(b) Authority of the Court. The court shall decide:
(1) Motions for involuntary dismissal, motions to change or add parties to
the case, and motions for summary judgment, and
(2) Issues relating to costs and attorney fees if those issues cannot
otherwise be decided by the arbitrator.
[Amended effective September 1, 1989; September 1, 1994; September 1, 2011.]
RULE MAR 4.1
RESTRICTIONS ON COMMUNICATION BETWEEN
ARBITRATOR AND PARTIES
No disclosure of any offers of settlement made by any party
shall be made to the arbitrator prior to the announcement of the
award. Neither counsel nor a party may communicate with the
arbitrator regarding the merits of the case except in the
presence of, or on reasonable notice to, all other parties.
[Effective July 1, 1980; amended effective September 1, 2001.]
RULE MAR 4.2
DISCOVERY
After the assignment of a case to the arbitrator, a party may demand a
specification of damages under RCW 4.28.360, may request from the arbitrator an
examination under CR 35, may request admissions from a party under CR 36, and
may take the deposition of another party, unless the arbitrator orders
otherwise. No additional discovery shall be allowed, except as the parties may
stipulate or as the arbitrator may order. The arbitrator will allow discovery
only when reasonably necessary. The conference requirements of CR 26(i) shall
not apply to motions to the arbitrator to allow additional discovery under this rule.
[Effective July 1, 1980; Amended September 1, 2009]
RULE 4.3
SUBPOENA
In accordance with CR 45, a lawyer of record or the arbitrator may
issue a subpoena for the attendance of a witness at the arbitration hearing
or for the production of documentary evidence at the hearing. A subpoena
for discovery purposes may be issued only with the permission of the
arbitrator or by stipulation.
RULE 5.1
NOTICE OF HEARING
The arbitrator shall set the time, date, and place of the hearing and
shall give reasonable notice of the hearing date to the parties. Except by
stipulation or for good cause shown, the hearing shall be scheduled to take
place not sooner than 21 days, nor later than 63 days, from the date of the
assignment of the case to the arbitrator. The hearing shall take place in
appropriate facilities provided or authorized by the court.
RULE 5.2
PREHEARING STATEMENT OF PROOF
At least 14 days prior to the date of the arbitration hearing, each
party shall file with the arbitrator and serve upon all other parties a
statement containing a list of witnesses whom the party intends to call at
the arbitration hearing and a list of exhibits and documentary evidence,
including but not limited to evidence authorized under rule 5.3(d). The
statement shall contain a brief description of the matters about which each
witness will be called to testify, and whether that testimony is
anticipated to be provided in writing, in person, or by telephone. Each
party, upon request, shall make the exhibits and other documentary evidence
available for inspection by other parties. A party failing to comply with
this rule or failing to comply with a discovery order may not present at
the hearing the witness, exhibit, or documentary evidence required to be
disclosed or made available, except with the permission of the arbitrator.
RULE 5.3
CONDUCT OF HEARING--WITNESSES--RULES
OF EVIDENCE
(a) Witnesses. The arbitrator shall exercise reasonable control over
the mode and order of interrogating witnesses and presenting evidence so as
to (1) make the interrogation and presentation effective for the
ascertainment of the facts, (2) avoid needless consumption of time, and (3)
protect witnesses from harassment or undue embarrassment. In the discretion
of the arbitrator, a witness may testify by telephone. A witness shall be
placed under oath or affirmation by the arbitrator prior to presenting
testimony, a violation of which oath shall be deemed a contempt of court in
addition to any other penalties that may be provided by law. The arbitrator
may question a witness.
(b) Recording. The hearing may be recorded electronically or otherwise
by any party or the arbitrator.
(c) Rules of Evidence, Generally. The extent to which the Rules of
Evidence will be applied shall be determined in the exercise of discretion
of the arbitrator. The Rules of Evidence, to the extent determined by the
arbitrator to be applicable, should be liberally construed in order to
promote justice. The parties should stipulate to the admission of evidence
when there is no genuine issue as to its relevance or authenticity.
(d) Certain Documents Presumed Admissible. The documents listed below,
if relevant, are presumed admissible at an arbitration hearing, but only if
(1) the party offering the document serves on all parties a notice,
accompanied by a copy of the document and the name, address and telephone
number of its author or maker, at least 14 days prior to the hearing in
accordance with MAR 5.2; and (2) the party offering the document similarly
furnishes all other related documents from the same author or maker. This
rule does not restrict argument or proof relating to the weight of the
evidence admitted, nor does it restrict the arbitrator's authority to
determine the weight of the evidence after hearing all of the evidence and
the arguments of opposing parties. The documents presumed admissible under
this rule are:
(1) A bill, report, chart, or record of a hospital, doctor, dentist,
registered nurse, licensed practical nurse, physical therapist,
psychologist or other health care provider, on a letterhead or billhead;
(2) A bill for drugs, medical appliances or other related expenses on a
letterhead or billhead;
(3) A bill for, or an estimate of, property damage on a letterhead or
billhead. In the case of an estimate, the party intending to offer the
estimate shall forward with the notice to the adverse party a statement
indicating whether or not the property was repaired, and if it was, whether
the estimated repairs were made in full or in part, attaching a copy of the
receipted bill showing the items of repair and the amount paid;
(4) A police, weather, wage loss, or traffic signal report, or standard
United States government life expectancy table to the extent it is
admissible under the Rules of Evidence, but without the need for formal
proof of authentication or identification;
(5) A photograph, videotape, x-ray, drawing, map, blueprint or similar
documentary evidence, to the extent it is admissible under the Rules of
Evidence, but without the need for formal proof of authentication or
identification;
(6) The written statement of any other witness, including the written
report of an expert witness, and including a statement of opinion which the
witness would be allowed to express if testifying in person, if it is made
by affidavit or by declaration under penalty of perjury;
(7) A document not specifically covered by any of the foregoing
provisions but having equivalent circumstantial guaranties of
trustworthiness, the admission of which would serve the interests of
justice.
(e) Opposing Party May Subpoena Author or Maker as Witness. Any other
party may subpoena the author or maker of a document or videotape
admissible under this rule, at that party's expense, and examine the author
or maker as if under cross examination.
RULE 5.4
ABSENCE OF PARTY AT HEARING
The arbitration hearing may proceed, and an award may be made, in the
absence of any party who after due notice fails to participate or to obtain
a continuance. If a defendant is absent, the arbitrator shall require the
plaintiff to submit the evidence required for the making of an award. In a
case involving more than one defendant, the absence of a defendant does not
preclude the arbitrator from assessing as part of the award damages against
the defendant or defendants who are absent. The arbitrator, for good cause
shown, may allow an absent party an opportunity to appear at a subsequent
hearing before making an award. A party who fails to participate without
good cause waives the right to a trial de novo.
RULE 6.1
FORM AND CONTENT OF AWARD
The award shall be in writing and signed by the arbitrator. The
arbitrator shall determine all issues raised by the pleadings, including a
determination of any damages. Findings of fact and conclusions of law are
not required.
RULE MAR 6.2
FILING OF AWARD
Filing and Service of Award. Within 14 days after the conclusion of the
arbitration hearing, the arbitrator shall file the award with the clerk of the
superior court, with proof of service upon each party. On the arbitrators
application in cases of unusual length or complexity, the arbitrator may apply
for and the court may allow up to 14 additional days for the filing and service
of the award. If the arbitrator fails to timely file and serve the award and
proof of service, a party may, after notice to the arbitrator, file a motion
with the court for an order directing the arbitrator to do so by a date
certain. Late filing shall not invalidate the award. The arbitrator may file
with the court and serve upon the parties an amended award to correct an
obvious error made in stating the award if done within the time for filing an
award or upon application to the superior court to amend.
[Amended effective September 1, 1993; September 1, 1994; September 1, 2011.]
RULE MAR 6.3
JUDGMENT ON AWARD
Judgment. If within the 20-day period specified in rule 7.1(a) no party has
properly sought a trial de novo, the prevailing party on notice as required by
CR 54(f) shall present to the court a judgment on the award of arbitration for
entry as the final judgment. A judgment so entered is subject to all provisions
of law relating to judgments in civil actions, but it is not subject to
appellate review and it may not be attacked or set aside except by a motion to
vacate under CR 60.
[Amended effective September 1, 1994; September 1, 2011.]
RULE MAR 6.4
COSTS AND ATTORNEY FEES
(a) Request. Any request for costs and attorney fees shall be filed with
the arbitrator and served upon all other parties no later than seven days after
receipt of the award. Any party failing to timely file and serve such a
request is deemed to have waived the right to an award of costs and attorney
fees, unless a request for a trial de novo is filed.
(b) Response. Any response to the request for costs and attorney fees
shall be filed with the arbitrator and served upon all other parties within
seven days after service of the request.
(c) Hearing. The arbitrator has discretion to hold a hearing on the
request for costs and attorney fees.
(d) Decision. Within 14 days after the service of the request for costs
and attorney fees, the arbitrator shall file an amended award granting the
request in whole or in part, or a denial of costs and attorney fees, with the
clerk of the superior court, with proof of service upon each party. If the
arbitrator fails to timely file and serve the amended award or denial and proof
of service, a party may, after notice to the arbitrator, file a motion with the
court for an order directing the arbitrator to do so by a date certain. Late
filing shall not invalidate the decision.
[Effective July 1, 1980; amended effective September 1, 2011.]
RULE MAR 7.1
REQUEST FOR TRIAL DE NOVO
(a) Service and Filing. Any aggrieved party not having waived the right
to appeal may request a trial de novo in the superior. Any request for a trial
de novo must be filed with the clerk and served, in accordance with CR 5, upon
all other parties appearing in the case within 20 days after the arbitrator
files proof of service of the later of: (1) the award or (2) a decision on a
timely request for costs or attorney fees. A request for a trial de novo is
timely filed or served if it is filed or served after the award is announced
but before the 20-day period begins to run. The 20-day period within which to
request a trial de novo may not be extended.
(b) Form. The request for a trial de novo shall not refer to the amount
of the award, including any award of costs or attorney fees, and shall be
substantially in the form set forth below:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
_______________, ) No. ______
Plaintiff, )
v. ) REQUEST FOR
_______________, ) TRIAL DE NOVO
Defendant. )
TO: The clerk of the court and all parties:
Please take notice that (name of aggrieved party) requests a trial de novo
from the award filed ____(date)_____.
Dated: _________________________ ___________________________________
(Name of attorney
for aggrieved party)
(c) Proof of Service. The party filing and serving the request for a
trial de novo shall file proof of service with the court. Failure to file
proof of service within the 20-day period shall not void the request for a
trial de novo.
(d) Calendar. When a trial de novo is requested as provided in section (a),
the case shall be transferred from the arbitration calendar in accordance with
rule 8.2 in a manner established by local rule.
[Amended effective September 1, 1989; September 1, 2001; September 1, 2011.]
RULE 7.2
PROCEDURE AFTER REQUEST FOR TRIAL DE NOVO
(a) Sealing. The clerk shall seal any award if a trial de novo is
requested.
(b) No Reference to Arbitration; Use of Testimony.
(1) The trial de novo shall be conducted as though no arbitration
proceeding had occurred. No reference shall be made to the arbitration
award, in any pleading, brief, or other written or oral statement to the
trial court or jury either before or during the trial, nor, in a jury
trial, shall the jury be informed that there has been an arbitration
proceeding.
(2) Testimony given during the arbitration proceeding is admissible in
subsequent proceedings to the extent allowed by the Rules of Evidence,
except that the testimony shall not be identified as having been given in
an arbitration proceeding.
(c) Relief Sought. The relief sought at a trial de novo shall not be
restricted by RCW 7.06, local arbitration rule, or any prior waiver or
stipulation made for purposes of arbitration.
(d) Arbitrator as Witness. The arbitrator shall not be called as a
witness at the trial de novo.
RULE 7.3
COSTS AND ATTORNEY FEES
The court shall assess costs and reasonable attorney fees against a
party who appeals the award and fails to improve the party's position on
the trial de novo. The court may assess costs and reasonable attorney fees
against a party who voluntarily withdraws a request for a trial de novo.
"Costs" means those costs provided for by statute or court rule. Only those
costs and reasonable attorney fees incurred after a request for a trial de
novo is filed may be assessed under this rule.
RULE 8.1
STIPULATIONS
(a) Generally. No agreement or consent between parties or lawyers
relating to the conduct of the arbitration proceedings, the purport of
which is disputed, will be regarded by the arbitrator unless the agreement
or consent is made at the arbitration hearing, or unless the agreement or
consent is in writing and signed by the lawyers or parties denying the
same.
(b) To Arbitrate Other Cases. The parties may stipulate to enter into
arbitration under these rules in a civil matter that would not otherwise be
subject to arbitration under rule 1.2. A case transferred to arbitration by
stipulation is subject to the arbitration rules in their entirety, except
as otherwise agreed under section (a).
RULE 8.2
LOCAL RULES
The arbitration rules may be supplemented by local superior court rules
adopted and filed in accordance with CR 83.
RULE 8.3
EFFECTIVE DATE
These rules shall take effect on July 1, 1980, and shall apply to all
cases in which trial has not commenced on the merits by July 1, 1980.
RULE 8.4
TITLE AND CITATION
These rules shall be known and cited as the Superior Court Mandatory
Arbitration Rules. MAR is the official abbreviation.
RULE 8.5
STATUS OF COMMENTS
The comments to these rules have not been adopted by the Supreme Court.
The comments are solely those of the Judicial Council.
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