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Arbitration Waivers

Aribtration clauses are becoming increasingly common as a way to more expeditiously resolve disputes that can arise between parties to a contract. With an arbitration, a neutral, third-party arbitrator decides the case, as opposed to a judge or a jury. Many disputes can arise with respect to the enforceability of an arbitration provision (e.g., unconscionability, fraudulent inducement). In more rare circumstances, it can occur (or be argued) that a party waived a right to arbitrate, even unknowingly sometimes. 

“A party may waive its right to arbitration.” Gentry v. Orkin, LLC, 490 S.W.3d 784, 788 (Mo. Ct. App. 2016). Whether an arbitration waiver has occurred is determined on a case-by-case basis. Id. Such a waiver occurs when (1) a party has knowledge of the right to arbitrate, (2) acts inconsistently with that right and (3) prejudices the party opposing arbitration. Id. A party “acts inconistently” for purposes of this analysis when he, she or it fails to follow the procedural steps required by the arbitration agreement. Boulds v. Dick Dean Economy Cars, Inc., 300 S.W.3dd 614, 619 (Mo. Ct. App. 2010). 

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