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Does a waiver of a contract right to arbitrate in one lawsuit, act as a waiver in a subsequent lawsuit involving the same contract and parties? This is an Illinois Circuit Court case (1st District). Contract requires AAA, Commercial Arbitration. See AAA Rule 47a and advise what if any impact on query. Trial court has denied defendant''s motion to compel arbitration, in part because defendant waived arbitration when it sued me in the earlier, dismissed suit. Defendant has filed an appeal. Of course, I want the case to remain with the court. Any case law cite(s) would be helpful.

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Chicago, Illinois

Customer (name blocked for privacy)

Status: Closed Value: $30

Hello,

I would like to clarify,

In your original complain the defendant waived the right to arbitration, and now in a second issue around the same contract, they are trying to enforce arbitration?

Regards

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Reply to Flagbridge-ADR's Post: The first lawsuit was against me, without the issue of arbitration being raised by either party. A default judgment was entered against me, a portion of the judgment was surreptitiously collected while my motion to vacate the default was pending. The default was subsequently vacated. The plaintiff then took a took a voluntary dismissal, keeping my money collected from the vacated default. I am now suing this person under the same contract (second lawsuit). After more than a year of litigation, the defendant has moved to compel arbitration. The trial court denied defendant's motion to compel but refused to consider the first lawsuit as a factor in determining that a waiver had occured. The defendant is appealing. I'm trying to find precedent that supports my hypothesis that the defendant's failure to arbitrate in the first lawsuit acts as a waiver against his asserting the right to arbitrate in the second lawsuit. Perhaps forum shopping? I'm at a loss and can't find any case law approximating this set of facts.

Thank you!

Hello,

It may not be that simple. Per Kostakos v. KSN Joint Venture No. 1 (1986), 142 Ill. App. 3d 533, 536. which is an Illinois case..Arbitration is a favored method of settling disputes in Illinois, and a finding of waiver of arbitration rights is disfavored. However, a waiver may occur when a party acts in a manner which is inconsistent with the arbitration clause, thus indicating abandonment of the right

Failure to enforce the first arbitration hearing is not consistent with someone enforcing an Arbitration clause.

HOWEVER If there is a Waiver clause in the contract that says something like,

No failure or delay by either party to enforce its rights under the Contract shall constitute a waiver of those rights nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them.

Then there is an argument to allow the selection of Arbitration at this point. I have not found a case in Illinois that addresses that particular issue.

Let me know if you need any more info.

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