Originally from Dispute Resolution Journal

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The following article analyzes the more recent and influential federal court cases concerning waiver of contractual arbitration rights. Matthew Forsythe focuses on the factual considerations that circuit courts have found significant in their decisions regarding arbitration waiver issues, and offers a review of the standards the courts have applied in these cases.

When contracting parties include an arbitration provision in their contract, it is obviously not their intention that disputes arising out of, or relating to, that agreement will ultimately wind up before a judge or jury in civil court. Even though parties to such arbitration agreements do not intend to litigate, their subsequent actions, or the steps taken by their legal counsel, may lead them directly into the public forum that contractually they have attempted to avoid.

The following article offers a summary of recent and influential federal court cases when a party has waived its contractual right to arbitrate. It looks at what factual considerations circuit courts deemed significant in their decisions regarding waiver, and the standards that each court applied in its review. Although the attempt has been to provide some insight into how courts address waiver of arbitration rights, this article is not intended to be an exhaustive treatise on the subject, a practitioner’s guide, or hornbook entry. Rather, it outlines the prevailing general trends in federal law and compares the varying tests and analyses used by federal appellate courts over the last 10 years or so.