How to Make a Motion to Compel Arbitration

George Simons

May 07, 2021

Sometimes you need an independent 3rd party to get involved with your dispute.

Summary: Can't imagine how you'd endure a day in court? You might not have to if you make a motion to compel arbitration. Resolve your dispute outside the courtroom.

If you were served with a debt collection lawsuit and are terrified at the prospect of having to go to argue and make an argument before a judge, do not fret. You have options. For example, it may be possible to resolve the debt collection lawsuit before going to court through an alternative form of dispute resolution. A well-known form of dispute resolution that takes place outside the courtroom is arbitration.

What Is Arbitration?

Arbitration is a private process outside of the court. It involves an agreement between the disputing parties in a legal case to empower one or more neutral individuals to render decisions about the legal dispute after listening to the arguments and receiving the evidence. This individual is known as an arbitrator.

Arbitrators take fairness and impartial oath and apply the law just like the judges. However, unlike the judges, arbitrators are answerable to the parties involved in the dispute. They are also handpicked by the individuals involved in the conflict. On the other hand, judges are elected or appointed by government officials.

Many agreements and contracts contain arbitration clauses. As a result, several state and federal laws allow an individual to compel for arbitration. However, you'll need to make sure that you have a valid arbitration agreement for this to happen.

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Difference Between Arbitration and Mediation

Arbitration and mediation differ in empowering and awarding authority to the neutral third party. In arbitration, the arbitrator has the power to render a decision considered to be final in resolving the dispute.

The conflicting parties agree on the settlement arrived at by the arbitrator. Evidence and arguments are highly regarded and written, and an arbitration award issued later.

In mediation, the conflicting parties retain the right to decide whether to agree or not to the mediator's settlement. A mediator only tries to encourage the disputing parties to work together by providing alternative directives and opinions, with the sole objective of reaching common ground with a mutually satisfying solution.

Unlike mediation, arbitration is more formal; it follows legal rules and procedures. In mediation, the disputing parties might fail to reach a common ground and end up back in the courts afterward.

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Characteristics of Arbitration

For a conflict resolution process to be considered as arbitration, it must have the following characteristics:

1. Confidentiality of the Process

The arbitration process is private; disclosures on submissions made or the information in those submissions and the awards given during the process are not allowed.

2. Finality of the Arbitrator's Decision

Before the process begins, parties involved in the dispute must agree to carry out the arbitral tribunal's final decision without delay.

3. Arbitration Is Neutral

Before the process begins, the parties involved ensure neutrality by:

  • Selecting an adjudicator of a neutral nationality
  • Choosing the laws to be applied depending on the state of the parties involved.
  • Selecting an appropriate language to use which should be convenient to both parties and
  • Selecting a proper venue of arbitration

These mutual decisions ensure that none of the parties involved has an advantage over the other.

4. Arbitration Is a Consensual Procedure

This process can only happen if both parties have agreed to it. Should a future dispute occur involving the same parties under the contract, either of the disputing parties will insert an arbitration clause under the relevant contract. Unlike mediation, a party cannot unilaterally withdraw from the arbitration process.

Deciding Whether to Make a Motion to Compel Arbitration

Before filing a motion to compel arbitration, consider the following:

1. Arbitration Provisions in the Initial Contractual Agreement

Consider checking your contract to confirm that you have a valid arbitration agreement. It's almost impossible to bring to action a compelling motion arbitration if you don't have a good arbitration agreement.

Arbitration provisions contain clauses that bind the parties in a contractual agreement to resolve their issues using an arbitration process rather than the court system. The clause states the arbitration tribunal's location and always requires any court with competent jurisdiction to confirm the award.

To compel your debt collector into participating in arbitration, ensure that the legal dispute falls within the parameters stated by the arbitration provision in the contract. For instance, some arbitration agreements may contain exclusions or exceptions for what is covered. A contract might require arbitration for missing out on one payment but not debt defaulted.

2. Location of the Arbitration Tribunal

If your argument is eligible for arbitration, it is important to determine the best location for the process. The arbitration provision includes such details.

3. Type of Court To Pursue Arbitration

Another thing to address is whether to pursue arbitration in a state court or a federal court. The Federal Arbitration Act (FAA) ensures judicial facilitation of private dispute resolution through arbitration.

It applies in both federal and state courts. However, many individuals consider filing the motion in federal courts because such courts have a firm policy of ruling in favor of arbitration.

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Procedures on How to Make a Motion to Compel Arbitration

If you have sufficient background facts and texts of the arbitration agreement, consider following the procedures below to compel arbitration.

1. Draft a Petition Compelling for Arbitration

According to Section 4 of the Federal Arbitration Act, you can file a petition compelling arbitration without waiting for the other party to sue you. Your pleading should have the title 'Petition to Compel Arbitration.' It should also contain the following information:

  • Sufficient background facts
  • Statements of the arbitration agreement
  • Lawsuit parties identifications
  • Court's jurisdiction over the lawsuit
  • Request for an arbitration order
  • Your signature

2. File Your Petition

Check with the court clerk about petition filing requirements and file the original petition. You should include a notice of hearing within five days.

3. Serve the Notice to the Other Party

Be sure to include the following:

  • Copy of your complaint
  • Notice of hearing
  • Summons

When serving the other party, be sure to follow the correct methods of service.

4. Attend the Hearing

Based on the issues provided, the judge will decide on the validity of the arbitration agreement. If these issues are not in dispute, the judge will issue an arbitration order.

Depending on your particular situation, you may want to contact the debt collector who is suing you and determine if they are willing to participate in the arbitration to resolve the dispute. If they are not willing to voluntarily participate in arbitration, you have the option to file a motion to compel arbitration.

If you want to compel participation in arbitration, it is important to make sure that the legal dispute falls within the parameters of the arbitration provision in the relevant contract (e.g., credit card agreement, personal loan agreement, car loan agreement, etc.). For example, some arbitration agreements contain exceptions or exclusions for what is covered. A contract might require arbitration for compensatory disputes but not for disputes related to the quality of work completed in a project.

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