Waiving Arbitration

[molly]

How do you waive the right to arbitration? Friends went to court for MSJ, never answered Discovery. When they tried to invoke the arbitration clause, the judge said, "I think you waived that right. You will hear from the court in 45 days." Does a failure to respond to discovery waive arbitration? And the judge also didn't say anything about the MSJ, or ruling for the plaintiff.

Could there have been a waiver in the discovery? I don't know what was in it, but I am curious.

[KentWA]

Most likely the judge was speaking to answering the law suit, and not preserving the right in the answer through an affirmitive defense. When did they become aware of the Arbitration clause in the contract?

[MG05]

Sometimes if the case proceeds too far you waive your right to arbitration. Trueq has a bunch of posts on this …

[trueq]

You can waive our contractual right to arbitration!

There is no bright line test on on this. Generally, (and I mean very generally), you waive your right to contractual arbitration if "the exercise of arbitration frustrates the adjudication of the action."

In my state, this generally means you need to do it before pre-trial, and if you file anything other than an answer or a dispositive motion, you are deemed to waive your contractual right to arbitration.

Conversely, in CO, we had someone do this 20 minutes before trial, which he was sure he was going to lose and debt lawyer just dismissed because he did not want to deal with arbitration.

SO THIS ISSUE VARIES WIDELY BY STATE!

The one argument you have on your side is, when did you know? Its hard to argue you waived something stated in the contract when you did not know about it. If you demanded a copy of the contract in your answer or before suit...and they did not provide it, properly informing you of your right to arbitrate, its hard to argue that is a legitimate waiverof arbitration on your part.

I'd submit an affidavit to the court immediately detailing how opposing counsel obscured and fraudulently hide the right to arbitrate from you by refusing to give you a copy of the alleged agreement alleged to be in breach....that should help make up the judge's mind on whether there was a legitimate and informed waiver.

Edited December 13, 2009 by trueq

[nascar]

Its hard to argue you waived something stated in the contract when you did not know about it.

There is a common law presumption that one who enters into a contract is aware of and understands its contents.

[trueq]

if you testify you did not get a copy or deny being party to the contract...that is a questionable waiver...especially if opposing counsel is denying my information request.

If one submits an affidavit detailing how opposing counsel is refusing to provide the information contained in the contract...that cannot be deemed a legitimate waiver.

At least under WI consumer law.

I think PA has similar info consumer request demand laws as well.

[molly]

Thanks. A generic copy of the agreement was attached to the Complaint. I don't think arbitration was mentioned in the Answer specifically.