An Arbitration clause is a contractual provision that mandates arbitration of disputes about the rights, duties, and liabilities of the contracting parties. This provision results in the avoidance of litigation.
Arkansas Motion to Compel Arbitration - No Waiver of Right
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How to fill out Motion To Compel Arbitration - No Waiver Of Right?
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Before a trial court may grant a motion to compel arbitration it must necessarily determine if a valid agreement exists to arbitrate the dispute. This is a requirement set forth in the Federal Arbitration Act (9 U.S.C. § 2 et seq., FAA) and the California Code of Civil Procedure.
Traditionally, to prove waiver of the right to arbitrate, a party must prove that (1) the waiving party had knowledge of an existing right to compel arbitration; (2) acted inconsistently with that existing rights; and (3) there was prejudice to the party opposing arbitration.
Refusing to participate in an arbitration will not prevent an arbitration award against that party once it has agreed to arbitrate. Given courts' great deference to arbitration awards, it is essential for a respondent to present its defense on the merits during the arbitration.
If you're a prospective plaintiff, however, the most important thing for you to know is that signing a mandatory arbitration clause means you waive your right to file your claim in court to be tried by a judge and/or jury.
Rules and Requirements A petition to compel arbitration must allege the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate such controversy. CCP § 1281.2 (c) (amended eff 1/1/19).
[1] In the context of arbitration, waiver occurs when a party consciously and intentionally gives up its right to arbitrate a particular dispute, thereby choosing litigation as the preferred method of dispute resolution.
Even if you don't currently have a dispute with the company, it is a good idea to opt out of the forced arbitration clause to preserve your options. You can always agree later to use an arbitrator to resolve any dispute. Moreover, if you have opted out, you will have more negotiating power if there is a problem.
If the contract doesn't provide a way to opt out of the arbitration agreement, then tell the other party you don't want to agree to the arbitration clause. Ask them if they will allow you to sign the contract without the arbitration clause.