dissenting.
I understand the majority opinion to hold, consistent with our precedent in Jackson v. Penny Duquette Knits, 276 Or 465, 555 P2d 201 (1976), consistent with the opinion of the Court of Appeals opinion below, and consistent with the holdings of most other courts considering the issue,1 that although an agreement to arbitrate bars judicial determination of arbitrable issues, the arbitration agreement does not bar the invocation of lien procedural remedies to collect the award of the arbitrators. I further read the majority opinion to hold, consistent with the Court of Appeals and other jurisdictions considering the issue,2 that even though attorney fees are recoverable incident to the foreclosure, absent a “rights and remedies” clause, one who prevails in the arbitration proceeding who seeks judicial assistance in collecting the award via lien foreclosure is not entitled to recover attorney fees incurred in the arbitration proceedings.
If the foregoing analysis of the majority opinion is correct, I concur with the majority to that point. I disagree, however, with the holding that because of the existence of the “rights and remedies” clause set forth on pages 237 and 238 of the majority opinion, the parties meant to retain the right to recover arbitration attorney fees in the lien foreclosure suit.
Written arbitration agreements are enforceable, ORS 33.220. If a contracting party files a civil action on an arbitrable claim, on motion the civil action is stayed until *240arbitration is completed, ORS 33.240. Jackson v. Penny Duquette Knits, supra. Following arbitration, the award is filed with the county clerk, and if no objections are filed, judgment “shall be entered as upon the verdict of a jury, and execution may issue thereon, and the same proceedings may be had upon the award with like effect as upon a verdict in a civil action,” ORS 33.310. I read these statutes to provide that all arbitrable matters relating to the personal liability of one or more of the parties are to be determined in the arbitration, with judicial procedures appropriate to the collection of judgments being available to the prevailing party following the entry of the award.
The majority believe that the right to recover attorney fees incurred in the arbitration proceedings still is available to the plaintiff because of the contractual provision that “* * * the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law.” The majority construes this contractual provision in three sentences, saying:
“* * * Article 7.6.1. provides that the rights and remedies under the contract (which includes the remedy of arbitration) shall not be a limitation of rights and remedies otherwise available by law. It does not seem the most likely reading of this reservation of rights that it meant to sacrifice attorney fees which the law allows when all phases of the foreclosure remedy are litigated in court. Rather, it seems more consonant with the apparent objective of including a reservation of rights to read art. 7.6.1 as disavowing such a limitation on the otherwise available right to attorney fees.”
That analysis is contrary to the purpose of our arbitration statutes and misconstrues the contractual language. In Harrell v. Dove Mfg. Co., 234 Or 321, 326, 381 P2d 710 (1963), we stated:
“* * * One of the primary purposes for which parties agree to arbitrate their disputes is to avoid what they fear may be costly and time-consuming litigation. See generally, Note, 63 Harv L Rev 681 (1950). It would be patently unfair to allow a party to an arbitration proceeding for which both parties have voluntarily contracted to turn the proceedings into a lawsuit in the event the arbitrator’s decision is unfavorable to him. * * *”
*241One of the main reasons why people invoke arbitration is to avoid the exercise, by themselves and the other contracting parties, of rights, rules and procedures applicable to judicial proceedings. It is beyond dispute that, by submitting controversies to arbitration, the parties waive numerous rights and remedies, both procedural and substantive, which would otherwise be available to them. Some of the waived rights and remedies include: waiver of rights and procedures applicable to pleadings; waiver of jury trial; waiver of rules of evidence; waiver of trial on the merits before a judge; waiver of a written record of the proceedings; waiver of right to appeal, except for limited grounds set forth in ORS 33.320. By agreeing to arbitration, the parties waive virtually all substantive rules and procedures which would otherwise be applied in a judicial proceeding. Thus, the predominant purpose of arbitration proceedings is to avoid the assertion of many rights otherwise available incident to the judicial process.
Second, the analysis of the majority, carried to its logical conclusion, guts virtually all arbitration agreements which contain “rights and remedies” language similar to that at bar. All of these rights listed above — the right to a jury trial, the right to a written record, etc., — are “rights and remedies otherwise imposed or available by law.” Under the majority opinion, even though the parties had agreed to a submission to a decision by arbitration, these rights and remedies would still be available to them. I find it difficult to follow the analysis that notwithstanding the waiver of such rights, such rights are nonetheless reserved to the parties.
The clear purpose of the arbitration agreement is to obtain ready relief as a shortcut to the judicial procedures otherwise available to the parties. The parties have agreed that any determination as to the amount due is to be determined by arbitration. That includes, in my opinion, the waiver of all judicial procedures and rights assertable therein, which would normally be available to them incident to the determination of the amounts due. Forgetting the lien for the moment, if a statute provided for attorney fees to the prevailing party, and if the parties had agreed to a submission of that dispute to arbitration, that would amount to a waiver of the right to attorney fees under the *242statute, even though ORS 33.310 permits the award to be filed and judgment to be entered thereon.3
I believe that the arbitration statutes aim to provide a procedure outside of court procedures for the determination of personal liability, if any, but to make court procedures available for the collection of the amount determined to be due. ORS 33.240; ORS 33.310. The “rights and remedies” provision preserves only those rights and remedies not otherwise displaced, expressly or implicitly, by the arbitration provision. What is necessarily displaced by the agreement cannot be reserved, without rendering the entire arbitration agreement totally nugatory. The “rights and remedies” provision cannot purport to retain to the parties the very rights and remedies which must yield in order to achieve arbitration. Construing the provision with the statutes in mind, matters pertaining to the pre-judgment determination of a party’s liability are to be decided in the arbitration; judicial procedures incident to the enforcement of the judgment are applicable after judgment is entered pursuant to ORS 33.310.
Tongue, J., joins in this dissent.See Floors, Inc. v. B. G. Danis of New England, 80 Mass Adv Sh 647, 401 NE2d 839 (1980), affirming the Massachusetts Appeals Court, Suffolk, 7 Mass App 356, 387 NE2d 1166 (1979); Beach Resorts Intern. v. Clarmac Marine Const., 339 So 2d 689 (Fla App 1976); Oakdale Park Ltd. v. Byrd, 346 So 2d 648 (Fla App 1977).
See cases cited in footnote 1.
For example, if a dispute involved a claim for damages to property and the claim were for $3,000 or less, under ORS 20.080, (Or Laws 1979, ch 525, § 1; amended by Or Laws 1981, ch 897, § 1 and ch 898, § 19), a prevailing plaintiff is entitled to attorney fees. If the claim herein were for damages to property and involved less than $3,000, the plaintiff would not be entitled to attorney fees under ORS 20.080 when the award was filed and judgment entered thereon. The right to attorney fees was waived when the arbitration agreement was signed. The presence of the rights and remedies provision should not change this result.