Supreme Court settles split on arbitration waiver

Trial Notebook

By Steven P. Garmisa

Hoey & Farina

Posted July 1, 2022 10:58 AM

Nine U.S. Circuit Courts of Appeal adopted a special waiver rule for analyzing mid-litigation arbitration demands. Pointing to the public policy favoring arbitration, they decided that participation in litigation doesn’t waive the right to demand arbitration unless the other party was prejudiced by the delay. Disagreeing, the 7th and D.C. Circuits opted for ordinary waiver analysis, with no showing of prejudice required.Settling the split, the U.S. Supreme Court ruled that the Federal Arbitration Act does not authorize an …

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