The questions a court answers first
A motion to compel arbitration usually turns on whether the parties formed an agreement to arbitrate and whether this dispute falls within it. Formation questions are common with online terms, where the issue is whether the person had reasonable notice of the terms and took an action showing agreement. Many clauses also contain a delegation provision that sends questions about scope, and sometimes enforceability, to the arbitrator rather than the judge. Under the Federal Arbitration Act, courts generally enforce arbitration agreements according to their terms, and New York law is also favorable to arbitration. Whether someone who never signed the agreement can enforce it, or be bound by it, is a separate and fact-specific question.
Records and conduct that matter
A party seeking arbitration usually proves assent through business records: the acceptance screen, timestamps, and the version of the terms in effect at the time, often explained in a declaration from someone familiar with those systems. A party opposing the motion looks closely at those same records for gaps, and gathers any prior contracts, emails transmitting new terms, or evidence that the terms were never presented. Conduct in the lawsuit matters too, because a party that litigates extensively before seeking arbitration may be found to have waived the right. The Supreme Court has held that federal waiver analysis does not require the opposing party to show prejudice. State law questions about contract defenses, such as unconscionability, are decided under the applicable state's rules.
Exceptions and the choice ahead
Certain claims are treated differently. Federal law lets a person bringing claims of sexual harassment or sexual assault elect to proceed in court despite a predispute arbitration agreement, and some other statutes carry their own limits. When a federal court compels arbitration and a party asks for a stay, the case is generally stayed rather than dismissed while the arbitration proceeds. When we first look at a motion like this, we examine the clause, how it was presented, the claims at issue, and the forum it names. Arbitration differs from court in cost, confidentiality, and the narrow grounds for review afterward, and those trade-offs are part of deciding whether to oppose the motion or proceed in arbitration.
