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.
New Mexico Motion to Compel Arbitration - No Waiver of Right
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A motion to compel arbitration is a request made to a court in a pending litigation matter to force a party to submit the dispute to arbitration.
Mandatory binding arbitration is a private proceeding to settle disagreements between two parties. Parties to a contract agree to have their case reviewed by a third party?called an arbitrator?and to be bound by the arbitrator's decision.
The assertion of the right to arbitrate the dispute is an affirmative defense. It must be stated in the answer. To enforce the right to arbitrate, the party must then file a motion to stay the lawsuit in favor of arbitration. If both parties to the agreement ignore the right to arbitrate, the right is waived.
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.
[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.
Necessary Elements Details of the Parties. ... Details of the relationship between the parties. ... Demand for Arbitration. ... The mention of agreement/contract (if any). ... The mention of already existing arbitration agreement between the parties pursuant to which the concerned notice of arbitration has been sent (if any).
Motions to Dismiss Some courts have found that a motion to dismiss can waive arbitration rights, but ?[n]ot every motion to dismiss is inconsistent with the right to arbitration.? See, e.g., Hooper, 589 F. 3d at 922.
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).