Chapter 2.15
SPECIAL PROCEEDINGS
Sections:
2.15.010 Seizures and disposition.
Repealed by Res. 2017-382. [Ord. 49 § 3.1, 1-8-2010 (Res. 2010-10)].
2.15.020 Mediation.
(1) Mediation is a process whereby the parties meet with a trained mediator to try to settle their case on mutually agreeable terms. The Court may, in its discretion, order the parties in a case to engage in mediation. The parties do not have to agree to settle their case. Everything said by the parties or the mediator in the mediation is confidential. The parties shall not mention whose fault it was that settlement was not reached. The mediator shall not be called as a witness in the case mediated.
(2) All lawful agreements reached in mediation to settle disputed matters in civil cases may be reduced to writing by the settling parties, and, if signed by the parties or the parties’ attorneys, shall be binding agreements enforced by the Tulalip Tribal Court in the same manner as contracts. Mediation agreements may also be filed or entered on the record and the case disposed of in accordance therewith. [Res. 2020-187; Ord. 49 § 3.2, 1-8-2010 (Res. 2010-10)].
2.15.030 Arbitration.
Arbitration is a process where, instead of a Judge or jury deciding a case, an arbitrator decides the case. The decision of the arbitrator is entered as a judgment by the Court. Two or more parties may agree in writing to submit to arbitration, in conformity with the provisions of this section, any controversy, dispute, or claim which may be the subject of an action existing between them at the time of the agreement to submit, or they may include in a written agreement a provision to resolve by arbitration all or a specific controversy, dispute, claim or action thereafter arising between them out of or in relation to such agreement. A provision contained in an agreement to resolve all or some controversies, disputes, claims or actions shall be valid, enforceable, and irrevocable, save upon such grounds as exist in law or equity for the revocation of any agreement. A Tribal Court Judge shall determine whether a provision to resolve by arbitration any or specific controversies, disputes, claims or actions is valid, enforceable, or irrevocable, or whether grounds exist in law or equity for the revocation of any such provision.
(1) Commencing Arbitration.
(a) Application. Any application made under authority of this section shall be made in writing and heard in a summary way in the manner and upon the notice provided by law or rules of Court for the making and hearing of motions or petitions, except as otherwise herein expressly provided. Jurisdiction under this section is specifically conferred on the Tulalip Tribal Court, subject to jurisdictional limitations.
(b) Notice of Intent.
(i) Form. When the controversy arises from a written agreement containing a provision to resolve by arbitration a specific controversy, dispute, claim or action thereafter arising between the parties and arising out of or in relation to such agreement, the party demanding arbitration shall serve upon the other party, personally or by registered mail, a written notice of the demanding parties’ intention to arbitrate that specific controversy, dispute, claim or action.
(ii) Timing. If the laws of the Tulalip Tribe govern the written agreement containing the provision to resolve by arbitration any or specific controversy, dispute, claim or action, a responding party shall have 20 days after service of the demand for arbitration of a particular controversy, dispute, claim or action to service a notice of motion to stay the arbitration with respect to all or a specific controversy, dispute, claim or action. A motion to stay under this subsection (1)(b)(ii) may be based upon any of the grounds set forth in subsection (2)(c) of this section. Failure to service a notice of motion to stay the arbitration for any such controversy, dispute, claim or action shall bar the responding party from putting in issue (A) the existence or validity of the provision contained within such an agreement to resolve by arbitration the specific controversy, dispute, claim or action set forth in the demand or (B) the failure to comply therewith.
(c) If the party receiving the demand for arbitration makes a counter-claim or counter-demand to include in the arbitration a controversy, dispute, claim or action, the initiating party shall have 20 days after receipt of such counter-claim or counter-demand to service a notice of motion to stay the arbitration or a portion of the arbitration applicable to the specific counter-claim or counter-demand.
(d) Unless otherwise specifically stated in the provision to arbitrate, a Tribal Court Judge shall have the sold authority to determine whether a party failed to service notice of a motion as set forth in subsection (1)(b)(ii) of this section.
(e) With regard to controversies, disputes, claims or actions related to or arising out of an agreement pertaining to the construction, alteration, repair, design, planning, survey, engineering, etc., of improvements upon real property, and unless specifically stated in the parties’ provision to arbitrate, a Tribal Court Judge shall have sole authority to determine whether a party making a demand or counter-demand/counter-claim to arbitrate a controversy, dispute, claim or action waived any such controversy, dispute, claim or action under TTC 2.05.030(10) or under the parties’ agreement due to a failure to comply with contractual procedural notice provisions.
(2) Motion to Compel. A party to written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration of any particular controversy, dispute, claim or action thereunder may make application to the Court for an order directing the parties to proceed with the arbitration in accordance with their agreement.
(a) Notice. Eight days’ notice in writing of such application shall be served upon the party alleged to be in default. Service thereof shall be made in the manner provided by law for service of a summons or notice in a civil action in the Court specified in subsection (1)(a) of this section.
(b) Response. In order to raise an issue as to the existence or validity of the arbitration agreement and whether a particular controversy, dispute, claim or action falls thereunder, or the failure to comply therewith, a party must set forth evidentiary facts raising such issue and must either: (i) make a motion for a stay some or all of the arbitration proceeding, or (ii) contest the motion to compel arbitration as provided in this section; provided, however, that a notice of the motion for the stay must be served within the time set forth in subsection (1)(b) of this section.
(c) Court Findings. If the Court is satisfied after hearing the parties that no substantial issue exists as to (i) the existence or validity of the agreement to arbitrate, (ii) whether a particular controversy, dispute, claim or action falls thereunder, (iii) whether a party has waived any controversy, dispute, claim or action, or (iv) the failure to comply therewith, the Court shall make an order directing the parties to proceed to arbitrate in accordance with the terms of the agreement. If the Court shall find that a substantial issue is raised as to (i) the existence or validity of the arbitration agreement, (ii) whether a particular controversy, dispute, claim or action falls thereunder, (iii) whether a party has waived any controversy, dispute, claim or action, or (iv) the failure to comply therewith, the Court shall proceed immediately to the trial of such issue. If the Court shall find that a substantial issue is raised as to whether a particular controversy, dispute, claim or action falls under a provision to arbitrate or whether a party has waived any specific controversy, dispute, claim or action, the Court shall stay the arbitration proceeding for that specific controversy, dispute, claim or action only and the remaining controversies, disputes, claims or actions may proceed in the arbitration. If upon such trial the Court finds that no written agreement providing for arbitration was made, that a particular controversy, dispute, claim or action did not fall under the agreement providing for arbitration, or that there is no default in proceeding thereunder, the motion to compel arbitration shall be denied. If upon such trial the Court finds that a party waived a particular controversy, dispute, claim or action, then the Court shall issue an order dismissing any such controversy, dispute, claim or action with prejudice.
(3) Stay of Action. If any action for legal or equitable relief or other proceedings be brought by any party to a written agreement to arbitrate, the Court in which such action or proceeding is pending, upon being satisfied that any issue involved in such action or proceeding is referable to arbitration under such agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding with regard to such issue until an arbitration has been had in accordance with the agreement. If the entire proceeding is not stayed, the Court may bifurcate those issues that are subject to arbitration from the remaining issues that are not subject to arbitration.
(4) Order to Preserve Property or Secure Satisfaction of Award. At any time before the final determination of the arbitration, the Court may, upon application of a party to the agreement to arbitrate, make such order or decree or take such proceeding as it may be deemed necessary for the preservation of the property or for securing satisfaction of the award.
(5) Appointment of Arbitrators. Unless the parties’ agreement to arbitrate provides differently, when a case is set for arbitration, a list of five proposed arbitrators shall be furnished to the Court by the parties. Upon the application of any party to the arbitration agreement, and upon notice to the other parties thereto, the Court shall appoint an arbitrator, or arbitrators, in any of the following cases:
(a) When the arbitration agreement does not prescribe a method for the appointment of arbitrators;
(b) When the arbitration agreement does not prescribe a method for the appointment of arbitrators, the arbitrators have not been appointed, and the time within which they should have been appointed has expired; or
(c) When any arbitrator fails or is otherwise unable to act and his successor has not been duly appointed.
In any of the foregoing cases, where the arbitration agreement is silent as to the number of arbitrators, the Court shall appoint three arbitrators. Arbitrators appointed by the Court shall have the same power as though their appointment had been made in accordance with the agreement to arbitrate.
(6) Hearing. The arbitrators shall appoint a time and place for the hearing and notify the parties, and may adjourn the hearing from time to time as may be necessary, and on application of either party and for good cause may postpone the hearing to a time not extending beyond the date fixed for making the award. All arbitrators shall meet and act together during the hearing, but a majority of them may determine any question and render a final award. The Court shall have power to direct the arbitrators to proceed promptly with the hearing and determination of the controversy.
(a) Attorneys. Any party shall have the right to be represented by an attorney at law in any arbitration proceeding or any hearing before the arbitrators.
(b) Depositions. Depositions may be taken in the same manner and upon the same grounds as provided by law for the taking of depositions in suits pending in Tribal Court.
(c) Witnesses. The arbitrators, or a majority of them, may require any person to attend as a witness, and to bring with him any book, record, document, or other evidence. The fees for such attendance shall be the same as the fees of witnesses in the Tribal Court. Each arbitrator shall have the power to administer oaths. Subpoena shall issue and be signed by the arbitrators, or any one of them, and shall be directed to the person and shall be served in the same manner as subpoena to testify before the Tribal Court.
(d) Failure to Appear.
(i) Parties. If any party neglects to appear before the arbitrators after reasonable notice of the time and place of hearing, the arbitrators may nevertheless proceed to hear and determine the controversy upon the evidence which is produced before them.
(ii) Witnesses. If any person summoned to testify shall refuse or neglect to obey such subpoena, upon petition unauthorized by the arbitrators or a majority of them, the Court may compel the attendance of such person before the said arbitrator or arbitrators, or punish said person for contempt in the same manner now provided for the attendance of witnesses or the punishment of them in Tribal Court.
(7) Award.
(a) Timing. If the time within which the award shall be made is not fixed in the arbitration agreement, the award shall be made within 30 days from the closing of the proceeding, unless the parties, in writing, extend the time in which that award may be made. If the arbitrator fails to make an award when required, the Court, upon motion and hearing, shall order the arbitrator to enter an award within the time fixed by the Court, and may impose sanctions or terms deemed reasonable by the Court. Failure to make an award within the time required shall not divest the arbitrators of jurisdiction to make an award or to correct or modify an award as provided in subsection (7)(c) of this section.
(b) Form. The award shall be in writing and signed by the arbitrators or by a majority of them. The arbitrators shall promptly upon its rendition deliver a true copy of the award to each of the parties or their attorneys.
(c) Modification by Arbitrators. On application of a party or, if an application to the Court is pending, on submission to the arbitrators by the Court under such conditions as the Court may order, the arbitrators may modify or correct the award upon the grounds stated in subsections (7)(g)(i) and (iii) of this section. The application shall be made, in writing, within 10 days after delivery of the award to the applicant. Written notice shall be given to the opposing party, stating that objections, if any, must be served within 10 days from the notice. The arbitrators shall rule on the application within 20 days after such application is made. Any award so modified or corrected is subject to the provisions of subsections (7)(e), (f), and (g) of this section, and is to be considered the award in the case for purposes of this section, said award being effective on the date the corrections or modifications are made. If corrections or modifications are denied, then the award shall be effective as of the date the award was originally made.
(d) Notice. Notice of a motion to vacate, modify, or correct an award shall be served upon the adverse party, or his attorney, within three months after a copy of the award is delivered to the party or his attorney. Such motion shall be made in the manner prescribed by law for the service of notice of a motion in an action. For the purposes of the motion, any Judge who might make an order to stay the proceedings in an action brought in the same Court may make an order to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.
(e) Confirmation by Court. At any time within one year after the award is made, unless the parties shall extend the time in writing, any party to the arbitration may apply to the Court for an order confirming the award, and the Court shall grant such an order unless the award is beyond the jurisdiction of the Court or is vacated, modified, or corrected, as provided in subsections (7)(f) and (g) of this section. Notice of the motion, in writing, must be served upon the adverse party, or his attorney, seven days before the hearing. The validity of an award, otherwise valid, shall not be affected by the fact that no motion is made to confirm it.
(f) Vacation by Court. In any of the following cases, the Court shall, upon the application of any party to the arbitration, and after notice and hearing, make an order vacating the award:
(i) Where the award was procured by corruption, fraud, or other undue means;
(ii) Where there was evident partiality or corruption in the arbitrators or any of them;
(iii) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, refusing to hear evidence that is pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced;
(iv) Where the arbitrators exceeded their powers, or so imperfectly executed them that a final and definite award upon the subject matter submitted was not made;
(v) Where the arbitrators’ decision is completely irrational or exhibits a manifest disregard of the laws of the Tulalip Tribes or applicable federal law;
(vi) If there was no valid submission or arbitration agreement and the proceeding was situated without either serving a Notice of Intention to arbitrate, as provided in subsection (1)(b) of this section, or without serving a motion to compel arbitration, as provided in subsection (2) of this section.
An award shall not be vacated upon any of the grounds set forth under subsections (f)(i) through (v) of this section, inclusive, unless the Court is satisfied that substantial rights of the parties were prejudiced. Where an award is vacated, the Court may, in its discretion, direct a rehearing either before the same arbitrators or before new arbitrators to be chosen in the manner provided in the agreement for the selection of the original arbitrators. Any provision limiting the time in which the arbitrators may make a decision shall be deemed applicable to the new arbitration and it shall commence from the date of the Court’s order.
(g) Modification or Correction by Court. In any of the following cases, the Court shall, upon application of any party to the arbitration, and after notice and hearing, make an order modifying or correcting the award:
(i) Where there was evident miscalculation of figures, or an evident mistake in the description of any person, thing, or property referred to in the award;
(ii) Where the arbitrators have awarded upon a matter not submitted to them;
(iii) Where the award is imperfect in a matter of form, not affecting the merits of the controversy.
(8) Judgment.
(a) Costs. Upon granting of an order, or confirming, modifying, correcting, or vacating an award, judgment or decree shall be entered in conformity therewith. Costs of the application and of the proceedings subsequent may be awarded by the Court in its discretion.
(b) Attorneys Fees. Attorneys fees may only be awarded in accordance with the provisions of Chapter 2.05 TTC.
(c) Prevailing Party. For purposes of determining costs and fees awarded pursuant to Chapter 2.05 TTC, “prevailing party” shall denote any party who prevails on all claims or defenses presented to the arbitrator, and “substantially prevailing party” shall denote any party who prevails on the majority of claims or defenses presented to the arbitrator by obtaining relief that is a substantial proportion of the dollar value of claims or defenses presented. However, any party who does not accept a written offer of settlement made at least 14 days prior to commencement of arbitration hearing, and thereafter fails to obtain relief in arbitration (exclusive of costs and fees) that is more favorable than the offer of settlement, may not recover costs or fees as a prevailing or substantially prevailing party, and shall be liable to the offeror for any costs and fees accrued subsequent to the date of the offer of settlement.
(d) Docketing. Immediately after entering judgment, the Clerk must attach together and file the following papers, which constitute the judgment roll:
(i) The agreement; the selection or appointment, if any, of an additional arbitrator, or umpire; and each written extension of the time, if any, within which to make the award;
(ii) The award;
(iii) Each notice, affidavit, or other paper used upon an application to confirm, modify, or correct the award, and a copy of each order of the Court upon such an application; and
(iv) A copy of the judgment.
(e) Effect. The judgment so entered has the same force and effect in all respects as, and is subject to all the provisions of law relating to, a judgment in an action. It may be enforced as if it had been rendered in an action in the Court in which it is entered.
(9) Appeal. An appeal may be taken from any final order made in a proceeding under this section, or from a judgment entered upon an award, as from an order or judgment in any civil action. [Res. 2019-112; Res. 2014-403; Res. 2012-105; Ord. 49 § 3.3, 1-8-2010 (Res. 2010-10)].