Drafting and Litigating Arbitrability: A Practical Guide

Document type: Guide Practice area: Litigation — Arbitration Jurisdiction: United States (federal) Last reviewed: 5 September 2026

Motions to compel arbitration are decided in the first ninety days of a case and they determine everything that follows. Forum sets the discovery scope, the cost curve, the availability of class treatment, the appeal rights, and the settlement dynamics. A party that wins the motion has usually improved its position by more than any merits ruling will.

They are also, in practice, won and lost on preparation rather than doctrine. The doctrine is settled enough to be predictable. What varies is whether the moving party built a formation record, whether it moved fast enough to avoid a waiver argument, and whether it identified the right question to answer first.

This guide walks both sides through it.

PART ONE — THE FIRST WEEK

Step 1: Collect every agreement between the parties

Not the one the complaint attaches. Every one.

• Master agreements and their amendments.
• Statements of work, order forms, purchase orders, addenda.
• Terms of service and their version history, with acceptance records.
• Employment agreements, offer letters, handbooks, equity award agreements.
• Settlement agreements and side letters.
• NDAs, which frequently contain their own dispute resolution provisions.
• Any click-through the counterparty accepted, with the date, the version, and the acceptance log.

Why this comes first. After Coinbase, Inc. v. Suski, 602 U.S. 143 (2024), when two agreements point to different forums, a court decides which one governs — and no delegation clause changes that. A motion to compel filed without knowing about the second agreement is a motion that gets ambushed.

Build a table: agreement, date, signatories, dispute resolution provision, scope language, integration clause, and whether it addresses the earlier agreements.

Step 2: Assess waiver immediately

Morgan v. Sundance, Inc., 596 U.S. 411 (2022) removed the prejudice element that eight circuits had required. The analysis is now ordinary waiver: did the party act inconsistently with the right to arbitrate?

What creates risk:

• Filing an answer without asserting the arbitration agreement.
• Filing or opposing a motion to dismiss on the merits.
• Serving or responding to substantive discovery.
• Participating in a Rule 26(f) conference and a scheduling order without reserving the right.
• Removing a case and then litigating for months.
• Asserting counterclaims.

What does not, generally:

• Seeking an extension of time.
• Filing a notice of appearance.
• Moving to compel promptly, even if a few procedural steps preceded it.

The rule of practice: if arbitration is a possibility, say so in the first responsive filing and move to compel within thirty to sixty days. A motion filed in month eight will be met with a waiver argument, and after Morgan that argument no longer has to show prejudice.

Step 3: Decide the order of questions

There is a correct sequence, and briefing them out of order costs credibility.

1. Which agreement governs? — court, always. Suski.
2. Does the FAA apply? — the § 1 transportation-worker exemption, and the EFAA for sexual assault and harassment claims. A court decides both, delegation notwithstanding, per New Prime Inc. v. Oliveira, 586 U.S. 105 (2019).
3. Was an agreement formed? — court.
4. Is arbitrability delegated? — court decides whether it was delegated; if yes, the arbitrator decides the rest.
5. If not delegated: is this dispute within the clause's scope? — court.
6. Procedural questions — arbitrator, per Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002).

PART TWO — MOVING TO COMPEL

Step 4: Build the formation record

This is the part most motions do badly. A motion to compel supported only by a copy of the contract is thin, and thin motions draw evidentiary hearings.

For a signed agreement: the executed copy, a declaration from someone with knowledge of execution, and the signature authority if it is contested.

For click-through or online terms: this is where cases are lost. You need:

• The acceptance record: user identifier, timestamp, IP address, and what was displayed.
• Screenshots or a rendering of the interface as it appeared on the acceptance date — not as it appears today.
• The version of the terms in effect that day, with a hash or version identifier.
• A declaration from an engineer or product owner explaining the flow, the logging, and the retention.
• If terms were amended, the notice given and the acceptance of the amended version.

A declaration from counsel is not enough. Courts want a witness who can say how the system works and what the records show.

For non-signatories: identify the theory — agency, estoppel, third-party beneficiary, alter ego, incorporation by reference — and build the facts for it. Non-signatory questions are formation questions, and courts generally decide them notwithstanding a delegation clause.

Step 5: Draft the motion

Structure:

I.    INTRODUCTION
      Two paragraphs. The agreement, the clause, the claims, the
      relief: compel and stay.
II.   FACTUAL BACKGROUND
      The agreement(s). Formation facts. The claims asserted.
III.  LEGAL STANDARD
      FAA § 2 makes arbitration agreements enforceable. § 4
      requires an order compelling where the making of the
      agreement is not in issue. § 3 requires a stay on request.
IV.   ARGUMENT
      A. [If multiple agreements] The [X] Agreement governs
         these claims
      B. A valid agreement to arbitrate exists
      C. The parties delegated arbitrability to the arbitrator
         [or: the claims fall within the clause's scope]
      D. [If applicable] The non-signatory may enforce
      E. Plaintiff has not waived and defendant has not
         defaulted
V.    THE COURT SHOULD STAY, NOT DISMISS
VI.   CONCLUSION

Drafting notes:

Section IV.A goes first when there is more than one agreement. Leading with delegation when a Suski problem exists reads as an attempt to skip the antecedent question.

Section IV.C should plead delegation as a complete answer where the clause supports it. Under Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) and Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63 (2019), a court with a valid delegation provision before it has no authority to decide arbitrability — even if it thinks the arbitrability argument is weak.

Section V is not boilerplate. Smith v. Spizzirri, 601 U.S. 472 (2024) makes a stay mandatory on request. Ask for it, in the motion and in the proposed order. A stayed case keeps federal jurisdiction available for a later confirmation petition, which matters because Badgerow v. Walters, 596 U.S. 1 (2022) removed look-through jurisdiction for § 9 confirmations.

On jurisdiction for the petition itself: Vaden v. Discover Bank, 556 U.S. 49 (2009) permits looking through a § 4 petition to the underlying controversy. This is the one FAA context where look-through works.

Step 6: Handle a contested formation record

Section 4 provides that if "the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof" — with a jury if a party demands one and the issue is jury-triable.

What this means practically:

• Courts apply a summary-judgment-like standard: if the opposing party raises a genuine issue of material fact about formation, an evidentiary proceeding follows.
• Limited discovery on formation is common. Keep it narrow and focused on the acceptance records.
• Do not let it expand into merits discovery. Propose a scope in your first filing.
• A declaration that says "our records show the plaintiff accepted the terms" without explaining how the records work invites exactly this.

PART THREE — OPPOSING A MOTION TO COMPEL

Step 7: Aim the challenge precisely

This is where most oppositions fail, and the failure is structural rather than substantive.

If there is a delegation clause, you must challenge the delegation clause specifically. Under Rent-A-Center, a challenge to the arbitration agreement as a whole goes to the arbitrator; only a challenge directed at the delegation provision is for the court.

What that looks like in practice:

• Not: "the arbitration agreement is unconscionable because the fee-splitting provision makes arbitration prohibitively expensive."
• But: "the delegation provision is unconscionable because it requires the plaintiff to pay half of the arbitrator's fee merely to have the arbitrator decide whether the agreement is enforceable, which for this plaintiff exceeds the value of the claim."

The second version may or may not win, but it gets decided. The first does not.

Step 8: Work the openings in order

One — is there another agreement? Suski is the strongest available argument when it applies, because a court decides it and no delegation clause reaches it.

Two — formation. "I never agreed" is a court question. Attack the acceptance record: was the notice conspicuous? Was assent unambiguous? Did the interface actually display the terms? Was the version presented the version now offered? Was there notice of an amendment? Online formation cases turn on interface design, and courts have become genuinely rigorous about it.

Three — the FAA's applicability. Section 1 exempts transportation workers, and after Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022) and Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246 (2024) the test is what the worker does, not what industry the employer is in. Courts decide this even where the clause delegates, per New Prime.

Four — the EFAA. For claims of sexual assault or sexual harassment, the statute permits the claimant to void a predispute arbitration agreement as to that dispute, and expressly assigns the question to a court notwithstanding any delegation clause.

Five — waiver. After Morgan, no prejudice showing is required. Build a timeline of the movant's litigation conduct: filings, discovery served and answered, conferences attended, positions taken.

Six — scope, if arbitrability is not delegated. Narrow clauses ("arising under") do not reach tort and statutory claims the way broad ones ("arising out of or relating to") do.

Seven — unconscionability, aimed correctly. Procedural: adhesion, surprise, inconspicuous terms. Substantive: one-sided carve-outs that send the drafter's claims to court and the other side's to arbitration, prohibitive cost-shifting, unreasonably short limitations periods, remedy limitations, and confidentiality provisions that prevent claimants from learning about similar claims.

Step 9: Preserve the appeal — and understand the asymmetry

Section 16 is deliberately lopsided.

If you lose (arbitration is compelled): the order is generally not immediately appealable. Your route is a § 1292(b) certification, which is rarely granted, or review after the award — by which point you have arbitrated the case.

If the movant loses (arbitration denied): they get an immediate appeal, and the district court must stay proceedings during it under Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023).

What this means for both sides. The party seeking arbitration gets two chances; the party resisting gets one. Factor that into settlement analysis at the motion stage. It also means a defendant with a colorable arbitration argument has an inexpensive way to pause a case for a year, which is a reality plaintiffs' counsel should price in.

PART FOUR — WORKED SCENARIOS

Scenario A: the acceptance record that did not exist

Halvorsen Wellness, a subscription fitness app, was sued in a putative class action alleging that its automatic renewal practices violated state consumer protection statutes. Its terms of service contained an arbitration clause with an express delegation provision and a class waiver.

Halvorsen's counsel, Tomasz Beauchamp-Iwu, filed a motion to compel forty-one days after service, attaching the current terms of service and a declaration from the general counsel stating that "all users accept the Terms of Service upon registration."

What went wrong. The named plaintiff had registered in 2021. The declaration attached the 2025 terms. The 2021 version had a materially different arbitration clause — no delegation provision, and a different institution. Plaintiff's counsel found the 2021 version on an internet archive and attached it to the opposition.

Worse: the general counsel's declaration described the registration flow generically and could not say what the plaintiff had actually seen. Halvorsen had changed its registration interface three times since 2021, and one version had displayed the terms link below the fold in eight-point gray type.

The court denied the motion, finding a genuine issue of material fact as to whether the plaintiff had received reasonably conspicuous notice, and ordered limited discovery on formation.

What the record should have contained:

• The exact version of the terms in effect on the plaintiff's registration date, with the internal version identifier.
• A rendering of the registration screen as it appeared that day, produced from the code repository or the design system.
• The acceptance log entry: user id, timestamp, IP, and the terms version hash.
• A declaration from an engineer explaining the logging system, its retention, and how the record ties to the plaintiff.
• The notice given for each subsequent amendment and the plaintiff's acceptance of it.

How it resolved. After four months of formation discovery and an evidentiary hearing, the court compelled arbitration as to the plaintiff based on a later version she had affirmatively accepted at a re-consent prompt in 2023. Halvorsen won, eleven months and roughly $340,000 later than it should have.

The operational fix. Halvorsen built a terms-of-service evidence package: for each version, the text, the effective dates, the interface renderings, and the acceptance logging schema, maintained by legal and engineering jointly and refreshed at every change. The package now takes an afternoon to assemble instead of four months.

Scenario B: the delegation clause that held

Rutherglen Capital was sued by a former portfolio manager, Adaeze Fontaine-Whitcombe, over deferred compensation. Her employment agreement contained an arbitration clause with an express delegation provision drafted as a separate, severable agreement.

Adaeze's counsel opposed on the ground that the arbitration agreement as a whole was unconscionable: the fee-splitting provision required her to pay half the arbitrator's fees, the agreement shortened the limitations period to one year, and it barred punitive damages.

Rutherglen's response was short. Under Rent-A-Center, a challenge to the agreement as a whole goes to the arbitrator. Adaeze had not challenged the delegation provision specifically. The court had no occasion to reach unconscionability.

The court compelled arbitration, expressly noting that it was not passing on the unconscionability arguments, which the arbitrator would decide.

What Adaeze's counsel should have done. Directed the challenge at the delegation provision itself: the fee-splitting provision applies to the delegation, so she would have to pay several thousand dollars merely to have an arbitrator decide whether the agreement is enforceable, which exceeds the value of her claim and makes the delegation itself unconscionable. That argument might have failed on the facts — her claim was substantial — but it would have been decided.

The lesson runs in both directions. For the drafter: an express, self-describing, severable delegation provision is close to bulletproof against generalized attacks. For the challenger: read Rent-A-Center before drafting the opposition, and aim.

Scenario C: the second agreement

Pinehaven Grocers entered a supply agreement with Marchetti Provisions containing an AAA arbitration clause. Two years later, a dispute over a spoiled shipment was resolved by a settlement agreement containing a New Jersey forum selection clause and a general release.

A year after that, Pinehaven sued Marchetti over a different shipment, alleging breach of the supply agreement and fraudulent inducement of the settlement.

Marchetti moved to compel under the supply agreement's clause, arguing that the incorporated AAA rules delegated arbitrability and that the arbitrator should decide whether the settlement's forum clause displaced the arbitration clause.

The court rejected the delegation argument as to that question. Under Coinbase v. Suski, when two agreements conflict, a court decides which governs, and a delegation clause in the first cannot answer whether the second superseded it.

On the merits of the hierarchy question, the court held that the settlement agreement governed the claims arising out of the settlement — the fraudulent inducement claim — and that the supply agreement's arbitration clause governed the new shipment dispute. It compelled arbitration of the supply agreement claims and retained the fraudulent inducement claim, staying it pending the arbitration.

The drafting failure. The settlement agreement had been drafted by litigation counsel who did not read the underlying supply agreement. A single sentence — "Except as expressly provided herein, the dispute resolution provisions of the Supply Agreement dated [date] remain in full force and effect and govern any dispute arising thereunder" — would have prevented the entire motion.

The systemic fix Marchetti adopted: a rule that every settlement agreement, amendment, addendum, and side letter must state, expressly, how it interacts with the dispute resolution provision of every agreement it touches. The clause library now contains three standard formulations — supersedes, supplements, subordinate — and the drafter must pick one.

PART FIVE — DRAFTING SO THE FIGHT DOES NOT HAPPEN

The delegation decision

Decide deliberately, then say it. Both choices are defensible; the failure is silence.

Express delegation:

Delegation. The arbitrator, and not any federal, state, or local
court or agency, shall have exclusive authority to resolve any
dispute relating to the interpretation, applicability,
enforceability, scope, or formation of this Section [__],
including any claim that all or any part of this Section is void
or voidable. The Parties acknowledge that this delegation
provision is a severable agreement that may be enforced
independently of the remainder of this Section and of this
Agreement, and that a challenge to any other provision of this
Agreement does not affect it.

Express reservation:

Notwithstanding the incorporation of the [institution] Rules,
any question concerning the existence, scope, validity, or
enforceability of this arbitration agreement shall be decided by
a court of competent jurisdiction and not by the arbitrator.

When to reserve rather than delegate. Where the transaction involves multiple agreements with different mechanisms; where the clause's scope is complex; where the client would rather have a court's answer, with appellate review, on whether a dispute belongs in arbitration at all.

The agreement-hierarchy sentence

Put one of these in every subsequent document.

[SUPERSEDES] The dispute resolution provisions of this Agreement
supersede and replace any dispute resolution provision in any
prior agreement between the Parties with respect to the subject
matter hereof.

[SUBORDINATE] Any dispute arising out of or relating to this
[Addendum / Statement of Work / Order] shall be resolved as
provided in Section [__] of the Master Agreement dated [date],
which is incorporated by reference.

[SUPPLEMENTS] The dispute resolution provisions of the Master
Agreement dated [date] govern any dispute arising under this
Agreement, except that [specified disputes] shall be resolved as
provided in Section [__] hereof.

This one habit prevents more litigation than any other item in this guide.

Scope

• Broad: "any dispute, claim, or controversy arising out of, relating to, or in connection with this Agreement or the relationship between the Parties, including any question regarding its existence, validity, breach, or termination." Reaches tort and statutory claims connected to the relationship.
• Narrow: "any dispute arising under this Agreement." Reaches contract claims and little else.

Pick one on purpose. Most commercial parties want broad. Some want narrow — a licensor that expects to litigate infringement, for example.

Carve-outs

Common and sensible, and easy to draft badly.

Notwithstanding the foregoing, either Party may seek temporary
or preliminary injunctive relief in any court of competent
jurisdiction to prevent the actual or threatened infringement,
misappropriation, or unauthorized disclosure of its
Intellectual Property or Confidential Information. Any such
application shall not waive this agreement to arbitrate, and the
underlying dispute shall be resolved in arbitration.

The failure mode: a carve-out for "any claim seeking injunctive relief" lets any claimant escape arbitration by adding a prayer for an injunction. Limit the carve-out to the relief and the subject matter, and say expressly that the underlying merits still go to arbitration.

And watch one-sidedness. A carve-out that lets only the drafter go to court is a leading substantive unconscionability argument. Make it mutual.

Class and collective procedures

Class Waiver. All disputes shall be arbitrated on an individual
basis. The arbitrator may not consolidate the claims of more
than one person and may not preside over any form of
representative, class, or collective proceeding. If this Class
Waiver is found unenforceable as to any claim or request for
relief, that claim or request shall be severed and heard in a
court of competent jurisdiction, and all remaining claims shall
be arbitrated on an individual basis.

Drafting notes. Class waivers are enforceable — AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) and Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018) — but the waiver must be findable, not buried in incorporated rules. The severance sentence is the important half: without it, a court that invalidates the class waiver may send the class claims to arbitration, which is almost never what the drafter wanted. And decide expressly whether the waiver's enforceability is delegated; leaving it ambiguous invites the fight described in the companion article.

The FAA-applicability fallback

Essential in any agreement with workers who move goods or people.

This arbitration agreement is governed by the Federal
Arbitration Act, 9 U.S.C. §§ 1-16. If a court determines that
the FAA does not apply to this Agreement or to any Party, this
arbitration agreement shall be governed by the [State] Uniform
Arbitration Act [or named state arbitration statute], and shall
remain fully enforceable thereunder.

Why. After Saxon and Bissonnette, the § 1 exemption reaches workers in companies that do not consider themselves transportation businesses. Without a fallback, a successful § 1 argument leaves the clause with no enabling statute.

Consumer and employment fairness terms

Where one party is a consumer or an individual worker, these terms are commonly required for enforceability and are worth including regardless:

• The drafter pays the arbitration filing and arbitrator fees above the cost of a court filing fee.
• The limitations period matches the statutory period; no shortening.
• All remedies available in court are available in arbitration, including statutory and punitive damages and fee-shifting.
• Reasonable discovery, sufficient to present the claim.
• A written, reasoned award.
• A convenient location — the claimant's home county or district.
• A meaningful opt-out, with a reasonable window and a simple mechanism. An enforced opt-out is one of the strongest answers to a procedural unconscionability argument.
• No confidentiality provision that prevents a claimant from discussing the underlying facts.
• Express acknowledgment that claims within the EFAA may be brought in court at the claimant's election.

Non-signatories

"Party" includes each named party and its affiliates,
subsidiaries, parents, successors, and permitted assigns, and
their respective officers, directors, employees, and agents,
each of whom may enforce this arbitration agreement.

Why. Litigating estoppel and agency theories is expensive and uncertain. Naming who may enforce is cheap and reliable.

PART SIX — BUDGET, TIMELINE, AND STAFFING

A realistic timeline

The compressible part is the middle. A company with a maintained formation-evidence package files in three weeks instead of ten and often avoids formation discovery entirely.

Budget

Where budgets overrun: formation discovery in online-terms cases, and multi-agreement disputes where the hierarchy question is genuinely close.

Staffing

A partner who owns the sequencing decision. The order in which the questions are briefed matters more than the quality of any individual argument.

An associate who owns the formation record. In an online-terms case this is a technical project involving engineering, product, and legal, and it needs a single owner.

A technical declarant, identified early. Courts want a witness who can explain the logging system. Find that person in week one, not week six.

Appellate counsel consulted before the motion is filed where the client's exposure is large. The § 16 asymmetry means a denial produces an immediate appeal, and a motion drafted with the appeal in mind preserves better issues.

PART SEVEN — MISTAKES THAT DECIDE THESE MOTIONS

Filing without collecting every agreement. The Suski problem surfaces in the opposition, and by then the motion's framing is wrong.

Waiting. After Morgan there is no prejudice requirement. Move within thirty to sixty days or expect a waiver fight.

A formation record built on a generic declaration. "All users accept the terms upon registration" is not evidence about this user on that day.

Attaching the current terms. Attach the version in effect on the acceptance date.

Opposing a delegation clause by attacking the agreement generally. Rent-A-Center disposes of it without reaching the merits.

Forgetting to request the stay. Spizzirri makes it mandatory on request. Dismissal loses the federal forum for later confirmation.

Assuming incorporation of rules delegates arbitrability. Likely between sophisticated parties; unreliable in consumer and employment settings; expressly reserved in Henry Schein.

Drafting a carve-out that swallows the clause. "Any claim seeking injunctive relief" is not a carve-out; it is an exit.

Omitting a severance clause from the class waiver. Invalidation then sends class claims to arbitration.

Ignoring § 1 in agreements with drivers and couriers. Include a state-law fallback.

Treating the arbitration clause as boilerplate at the drafting stage. Every problem in this guide originates there.

PART EIGHT — FREQUENTLY ASKED QUESTIONS

How fast do we have to move to compel? Assert the right in the first responsive filing and move within thirty to sixty days. Morgan removed the prejudice requirement, so delay alone can cost the right.

Can we take discovery before deciding whether to move? Substantive discovery is exactly what supports a waiver argument. If you need time, seek an extension and reserve the arbitration right in writing.

Our contract incorporates the AAA rules but has no delegation sentence. Is arbitrability delegated? Probably yes between sophisticated commercial parties in most circuits; unreliable in consumer and employment cases. Brief it, but do not rely on it as the only argument.

The plaintiff says he never saw the terms. What do we need? The version in effect that day, a rendering of the interface as it appeared, the acceptance log entry tying to this user, and a declarant who can explain the logging system.

Should we ask for dismissal instead of a stay? No. Spizzirri makes a stay mandatory on request, and the retained case preserves federal jurisdiction for a later confirmation petition under Badgerow.

Can our client's parent company, which did not sign, compel arbitration? Possibly, under agency, estoppel, or third-party beneficiary theories — but this is a formation question courts decide. The reliable answer is to name affiliates as permitted enforcers in the clause.

We lost the motion. Can we appeal? Yes, immediately, under § 16, and the district court must stay proceedings during the appeal under Coinbase v. Bielski.

We won the motion. Can the other side appeal? Generally not immediately. They would need § 1292(b) certification, which is rarely granted.

Does an arbitration clause survive termination of the contract? Usually yes, for disputes arising out of the terminated agreement — but say so expressly in the survival clause rather than relying on the presumption.

Can we amend our terms to add a delegation clause and apply it to existing users? Only with proper notice and acceptance. An amendment applied without meaningful assent is the formation problem in Scenario A. Build the re-consent flow and keep the records.

PART NINE — AN ANNUAL CLAUSE REVIEW

Put this on the calendar once a year. It takes half a day and it prevents most of what this guide describes.

• Does every standard agreement state whether arbitrability is delegated?
• Does every addendum, order form, SOW, amendment, and settlement template contain an agreement-hierarchy sentence?
• Is the class waiver findable, and does it have a severance clause?
• Is there an FAA-applicability fallback in agreements touching transportation workers?
• Do consumer and employment clauses carry the fairness terms — fee allocation, full remedies, convenient venue, standard limitations period, a real opt-out?
• Does the clause name who may enforce it, including affiliates?
• Are carve-outs mutual and limited to relief and subject matter?
• Is the formation-evidence package current — versions, interface renderings, acceptance logging schema?
• Have the year's decisions changed anything? Suski, Bissonnette, and Spizzirri each required a template change in the year they issued.
• Has anyone actually read the clause end to end recently? Most have not been read since they were copied from a prior deal.

PART TEN — WHEN NOT TO COMPEL

A motion to compel is a strategic choice, not an obligation, and there are cases where the right answer is to stay in court.

When the claim is small and the arbitration fee structure is worse for you. In consumer and employment contexts, the drafter typically pays the arbitrator's fees. On a single small claim, arbitration can cost the defendant more than the claim is worth — which is the entire premise of mass arbitration as a plaintiff-side strategy.

When you would rather have a dispositive motion. Arbitrators rarely grant summary judgment. A defendant with a clean statute of limitations defense or a clear contractual bar may prefer a federal judge who will decide it on the papers in month six.

When you need precedent. An arbitral award binds two parties and establishes nothing. A defendant facing the same claim from many counterparties may want a published decision.

When appellate review matters. Hall Street and its progeny make awards close to unreviewable. Where the legal question is novel and the exposure is large, the ability to appeal has real value.

When the arbitration clause is genuinely vulnerable. A motion that loses costs money, produces a published decision holding your clause unenforceable, and hands every future plaintiff a citation. Assess the clause honestly before filing.

When the client wants speed and the court is faster. In some districts a case reaches trial faster than a three-arbitrator panel can be constituted and scheduled.

The decision framework: write down what arbitration gets the client that court does not — confidentiality, no class exposure, cost, speed, decisionmaker expertise — and what it costs — no dispositive motions, no appeal, arbitrator fees, no precedent. Then decide. The reflex to compel because a clause exists is not a strategy.

PART ELEVEN — WHERE TO GET HELP

A lawyer who briefs these motions regularly. The doctrine is stable but the sequencing instincts are learned. Someone who files ten of these a year knows which argument a given district takes seriously.

Your client's engineering and product teams, early. In any online-terms case, they hold the evidence. Bring them in during week one and treat the formation record as a joint project rather than a document request.

Appellate counsel before filing, where exposure is large. The § 16 asymmetry means the motion is the first brief in a likely appeal.

The arbitral institution. Case managers will confirm which version of the rules applied on a given date, what the fee schedule was, and how the consumer or employment protocols apply. These are factual questions that show up in briefs, and getting them from the source is faster than arguing about them.

Your transactional colleagues, afterward. Every one of these motions produces a drafting lesson. The annual clause review in Part Nine only happens if someone schedules it.

Related documents

• Who Decides Arbitrability: Delegation Clauses, Gateway Questions, and the Severability Rule
• Arbitrability and Motion to Compel Checklist: A Practical Checklist
• Motion to Compel Arbitration Toolkit: Clauses, Declarations, and Appellate Strategy
• Selecting and Drafting an Arbitration Clause
• Website Terms of Service and Online Contract Formation: Clickwrap, Browsewrap, and Enforceable Arbitration
• Employment Arbitration Agreements After Epic Systems and the EFAA

This guide is general information, not legal advice, and does not create an attorney-client relationship.