Enforcing Arbitration Rights: Too Little + Too Late = Too Bad

A contract agreement to arbitrate can be enforced by either party, and can also be waived by either party.  Most arbitration waiver cases are fact-specific.  The New Jersey Supreme Court has recently confirmed a waiver, overruling a trial court prepared to stay the case pending arbitration on the eve of trial.  The case arose in a three-party setting, where only two of those parties (employer-employee) had an arbitration agreement. The NJ decision noted that courts should evaluate the totality of the circumstances in deciding the issue of waiver.  The case, available here, is Cole v. Jersey City Medical Center, 215 N.J. 265, 72 A.3d 224 (N.J., August 14, 2013).

The employer provided anesthesia services to a medical center.  The employer terminated the employee after the medical center revoked the employee's privileges.  She sued both parties.  Extensive discovery was conducted over a span of 21 months, and the defendants both filed motions for summary judgment.  The