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.
Virginia Motion to Compel Arbitration - No Waiver of Right
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FAQ
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.
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.
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.
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.
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.
Proceedings to compel or stay arbitration. A. On application of a party showing an agreement described in § 8.01-581.01, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration.