23 Trial Lawyer • Spring 2023 to you. It is fundamentally important that your arbitrator has a good relationship with the swing. If the swing likes and respects your arbitrator, they are more likely to side with them. Once I served on a panel where the swing dissented. The swing thought both the defense arbitrator and I were too high in our damage numbers. This was a very unusual result. I didn’t even know it was possible. However, most swing arbitrators’ goal is to reach a unanimous arbitration award. Attorney fees In the end, the driving force in the decision to arbitrate or go to trial is usually attorney fees. Did the carrier send a timely and proper safe harbor letter and remain within the safe harbor throughout? If so, there will be no entitlement to attorney fees under ORS 742.061. Consider filing suit then stipulating to submit the case to binding arbitration and abate the lawsuit pending the outcome of arbitration. This way if the carrier sails out of the safe harbor at any point, even in the midst of the arbitration hearing, you will have a strong argument in favor of an entitlement to attorney fees under ORS 742.061. Conclusion The bottom line is, with rare exception, the only time you should present your client’s case to a jury instead of an arbitrator or arbitration panel is when there is a clear entitlement to attorney fees under ORS 742.061. Even then, you should consider all of the pros and cons of each venue before you proceed. Gretchen Mandekor specializes in plaintiff's personal injury, legal malpractice defense and frequently serves as an arbitrator and mediator. She is a partner in the firm Rosenbaum Law Group PC, 1826 NE Bdwy, Portland, OR 97232. She can be reached at gretchen@rosenbaumlawgroup.com and 503-288-8000. Note: Haiku authored by Ryan Geraghty.
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