An employer that delays invoking its rights under an arbitration clause runs the risk of waiving those rights. The New Jersey Supreme Court, in Cole v. Jersey City Medical Center (A-6-12) (070542), has held an employer waived its contractual right to arbitration where the company failed to raise arbitration as an affirmative defense in its answer, engaged in 21 months of discovery, filed a motion for summary judgment, made no mention of the arbitration clause in its pretrial disclosures, and moved to compel arbitration for the first time only three days before the trial date. The August 14, 2013, decision likely would lead to early disclosure of arbitration agreements and, where appropriate, early motion practice.
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