OAR 808-004-0440: Contracts With Mediation or Arbitration Agreements – Exceptions

(1)(a) If a claim is received in the LCB office that is based upon a previously signed contract containing an agreement by the parties to privately mediate or arbitrate (in a binding process – meaning the disputants are forgoing access to all other dispute resolution processes including that provided by the LCB) disputes arising out of the previously signed contract, and the previously signed contract’s terms included the consumer advisory language required by OAR 808-002-0020(2)(k), then the specific terms of the private binding mediation or arbitration agreement supersede agency rules related to the agency’s claims process and the agency may not accept the claim because the parties have contracted to entirely forgo access to the agency process. (b) If the required binding private mediation or private arbitration has yet to commence, and the claimant still wishes to pursue a claim with the agency, the agency must inform the claimant by written notice that the agency will not accept the claim unless it receives, within 60 days of the date of the notice and prior to the commencement of any private binding mediation or arbitration process, a written waiver of the private binding mediation or arbitration requirement, set forth in the contract that was previously signed by the claimant and respondent, signed by the claimant and the respondent. (c) If the LCB receives, within 60 days of the date of its notice, and prior to the commencement of any private binding mediation or arbitration process, a written waiver of the private binding mediation or arbitration process documented in the contract previously signed by the claimant and respondent, and the waiver is signed by the claimant and the respondent, then the LCB may accept the claim into the LCB claims process. (2)(a) If a claim is received in the LCB office that is based upon a previously signed contract containing an agreement by the parties to privately mediate or privately arbitrate (in a non-binding process - meaning the parties do not intend to entirely forgo access to other legal processes including the agency claims process) disputes arising out of the previously signed contract, and the previously signed contract’s terms included the consumer advisory language required by OAR 808-002-0020(2)(k), then even though the non-binding private mediation or private arbitration agreement will continue to supersede agency rules until waived, completed or abandoned as set forth below, the agency may accept the claim into the claims process, but must suspend the processing of the claim pending the result of the private non-binding process. (b) If the required private non-binding mediation or arbitration process has yet to commence, and the claimant still wishes to pursue a claim with the agency, the agency must inform the claimant by written notice that the agency will not accept the claim unless it receives, within 60 days of the date of the notice and prior to the commencement of any private non-binding mediation or arbitration process, a written waiver of the private non-binding mediation or arbitration requirement, set forth in the contract that was previously signed by the claimant and respondent, signed by the claimant and the respondent. (c) If the LCB receives, within 60 days of the date of the notice and prior to the commencement of any private non-binding mediation or arbitration process, a written waiver of the private non-binding mediation or arbitration process documented in the contract previously signed by the claimant and respondent, and the waiver is signed by the claimant and the respondent, then the LCB may accept the claim into the LCB claims process. (d) If the non-binding private mediation or private arbitration has already commenced, and the claimant is seeking to file a claim with the LCB provides documentation that the previously contracted for non-binding private mediation or private arbitration was initiated in an attempt to resolve the same facts and issues raised in the claim sought to be filed with the LCB, and the non-binding private mediation or private arbitration failed, then the LCB may begin processing the claim. (3) If a claim is received, that is based upon a previously signed contract that contains an agreement by the parties to privately mediate or privately arbitrate (in a binding or non-binding process) disputes arising out of the contract - but the contract’s terms do not include the consumer advisory language required by OAR 808-002-0020(2)(k) - then the agency may: (a) bring an Enforcement Action, pursuant to ORS 671.625(3) and OAR 808-002-0020(2)(k), against the landscape contracting business. The Enforcement Action may (i) seek to obtain a ruling finding that the previously signed contract is unenforceable against the consumer pursuant to ORS 671.625(3), and (ii) may seek to assess a civil penalty for violation of the requirements of OAR 808-002-0020(2)(k); ORS 671.610(1)(f), (1)(m) and (q); ORS 671.997(1) and (3); and (b) accept the claim, but suspend the processing of the claim, pending the results of the agency Enforcement Action. (4) Upon the effective date of the 2023 rule amendments, the provisions of this rule will apply to: (a) all claims that remain open at the Board, and ( b) all claims received after the effective date of the 2023 rule amendments. (5) The 2023 amendments to this rule will not apply to claims cases closed prior to the effective date of this rule.