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Can A Right to Arbitration be Waived?

Kegler Brown Construction Newsletter

Ohio cases generally support a strong public policy favoring arbitration. And the construction industry has a long history of utilizing arbitration in contract documents. But a recent case emphasized that arbitration can be waived through actions inconsistent with the right to arbitrate.

In a Franklin County decision, the Court of Appeals found that a party’s “active participation in a lawsuit evinces an acquiescence to proceeding in a judicial forum.” Hunter v. RhinoShield, 2015-Ohio-4003. In that case one of the lawyers had actively participated in the lawsuit, including filing a motion for summary judgment, before changing strategy and seeking arbitration. At that point it was too late, and the court found arbitration had been waived.

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