Does a Motion to Compel Arbitration have to be in lieu of an answer to avoid waiver in Florida?

1. Avvo Q&A #1: Does a Motion to Compel arbitration have to be in lieu of an answer to avoid waiver in Florida? | Christopher Weiss Attorney at Law, P.A.
http://chrisw60.wordpress.com/2014/07/16/avvo-qa-1-does-a-motion-to-compel-arbitration-have-to-be-in-lieu-of-an-answer-to-avoid-waiver-in-florida/[7/17/2014 11:21:10 AM]
Christopher Weiss Attorney at Law, P.A.
Board Certified Construction Law
JULY 16, 2014
Avvo Q&A #1: Does a Motion to Compel
arbitration have to be in lieu of an answer to
avoid waiver in Florida?
Filing an answer and participating in discovery might
be construed as a waiver of your right to arbitrate.
The test for waiver has been articulated in several
ways by the courts. For instance, the Eleventh Circuit
has stated the test as follows: In determining
whether a party has waived its right to arbitrate, we have established
a two-part test. First, we must decide if, “under the totality of the
circumstances,” the party “has acted inconsistently with the arbitration
right,” and, second, we look to see whether, by doing so, that party
“has in some way prejudiced the other party.” While the Third Circuit
agrees that prejudice to the opposing party is the “touchstone for
determining whether a right to arbitration has been waived” five
additional factors are to be considered: (1) the degree to which the
party seeking to compel arbitration has contested the merits of its
opponent’s claims; (2) whether that party has informed its adversary
of the intention to seek arbitration even if it has not yet filed a motion
to stay (3) the extent of the non-merits motion practice; (4) its assent
to the court’s pre-trial orders; and (5) the extent to which both parties
have engaged in discovery. The Tenth Circuit also has a test for
waiver: (1) whether the party’s actions are inconsistent with the right
to arbitrate; (2) whether the “litigation machinery has been
substantially invoked” and the parties are well into preparation of a
lawsuit” before the party notified the opposing party of an intent to
arbitrate; (3) whether a party either requested arbitration enforcement
close to the trial date or delayed for a long period before seeking a
stay of proceeding; (5) “whether important intervening steps [e.g.
Christopher Weiss
Attorney at Law P.
A.
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2. Avvo Q&A #1: Does a Motion to Compel arbitration have to be in lieu of an answer to avoid waiver in Florida? | Christopher Weiss Attorney at Law, P.A.
http://chrisw60.wordpress.com/2014/07/16/avvo-qa-1-does-a-motion-to-compel-arbitration-have-to-be-in-lieu-of-an-answer-to-avoid-waiver-in-florida/[7/17/2014 11:21:10 AM]
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taking advantage of judicial discovery procedures not available in
arbitration] had taken place”; and (6) whether the delay “prejudiced”
the opposing party. Move to arbitrate and ask for some limited
discovery. A great background discussion is found in a case I arbitrated
on behalf of Graham Contracting. The citation is Graham Contracting,
Inc. v. Flagler County, 444 So. 2d 971 (Fla. Dist. Ct. App. 1983)
http://www.avvo.com/legal-answers/does-a-motion-to-compel-
arbitration-have-to-be-in–1791124.html#answer_4061178
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