Proposed Rules Archives

• Proposed Changes to MAR 3.2 - Authority of Arbitrator (in Word Format)
• No comments were submitted.

Purpose: The MARs do not specifically address the authority of the arbitrator to award costs and attorney fees. Several counties have rules stating that the arbitrator decides requests for costs and attorney fees, but there is inconsistent authority from county to county.

The suggested amendment to MAR 3.2(a) would add consistency by clearly stating this authority in a state-wide rule. This amendment would not expand the substantive availability of fees, as arbitrators would be authorized to award costs and attorney fees only as “authorized by law.” This authority would then be a foundation to the concurrent proposals to amend the procedures in MAR 6.4 and 7.1 relating to costs and attorney fees. For more information, please see the statements of purpose for the concurrent suggested amendments to MAR 6.3, 6.4, and 7.1. The amendment would also provide an “and” that was likely inadvertently omitted from the current list in MAR 3.2.

A new section (b) would: (1) restate the current rule that only the court may decide motions for involuntary dismissal, to change or add parties, and for summary judgment; and (2) clarify that, notwithstanding the express authority of the arbitrator to award costs and attorneys fees “as authorized by law,” the court retains the authority to consider cost and attorney fee issues “if those issues cannot otherwise be decided by the arbitrator.” The latter clarification is intended as a “catch-all” provision to ensure that the rule does not prevent the otherwise justified award of costs and attorney fees in some mandatory arbitration actions. For example, some appellate case law holds that it is improper for the trial court to make an attorney fee award pursuant to RCW 4.84.250-.280 when an MAR arbitrator had the authority under local rules to award attorney fees but was not asked to do so. Trusley v. Statler, 69 Wn. App. 462, 464-65, 849 P.2d 1234 (1993). However, attorney fee awards under RCW 4.84.250-.280 are determined through offer-of-settlement procedures, and the offer cannot be communicated to the trier of fact until after the judgment. See RCW 4.84.280; Hanson v. Estell, 100 Wn. App. 281, 290-91, 997 P.2d 426 (2000). Because the trial court rather than the arbitrator enters judgment, some might conclude that, when the arbitrator has been authorized to decide the issue of costs and attorney fees, neither the arbitrator nor the court may make an award of costs and attorney fees pursuant to RCW 4.84.280 in a mandatory arbitration case. The proposed amended language is designed to avoid this and similar incongruous results.