Compelling, Resisting, or Preparing for Arbitration: A Practical Checklist

Dispute Resolution > Arbitration | Published 26 March 2024 - Updated 18 March 2026 | UpLaw - uplaw.us

⚠ This checklist describes domestic arbitration under the Federal Arbitration Act. Labor arbitration under a collective bargaining agreement, securities industry arbitration, and international arbitration each follow different rules.

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Stage 1 — Reviewing a clause before you agree

☐ Search the document for "arbitration," "class," "jury," and "waiver." Two minutes, once, before signing anything.

☐ Identify the provider and locate its rules. The rules matter as much as the clause — they set fees, discovery, arbitrator selection, and the award form.

☐ Find the opt-out. Many consumer and employment clauses permit opt-out by written notice within 30 to 60 days, with no loss of any other benefit. ⭐ Almost nobody uses it. It costs a stamp and it preserves every option you would otherwise lose.

☐ Check who pays. A fee structure the claimant cannot afford is the most successful unconscionability argument there is — and it is also the term a drafter can most cheaply fix.

☐ Check the locale. A hearing in a distant state is a real cost and a real argument.

☐ Check for a shortened limitations period. A clause cutting a statutory period to 180 days is common and frequently attackable.

☐ Check for remedy limits. Bars on punitive damages, statutory fee-shifting, or injunctive relief are substantive unconscionability evidence.

☐ Check for a small claims carve-out. It is often the best available route for a modest claim. See small claims and self-representation.

☐ Check for a delegation provision. "The arbitrator shall decide all questions of arbitrability" changes who hears every later challenge — Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010).

☐ Check for a class or collective waiver, and whether it is severable from the rest.

☐ If you can negotiate, ask to carve out statutory claims. In employment agreements, sometimes the answer is yes.

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Stage 2 — A dispute has arisen: the first decisions

☐ Read the clause before filing anything anywhere. Filing in the wrong forum wastes months and can waive arguments.

☐ Determine whether the FAA applies at all. 9 U.S.C. § 2 requires a written provision in a contract evidencing a transaction involving commerce.

☐ Check the § 1 transportation exemption if the claimant drives, loads, or moves goods. Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246 (2024), asks what the worker does, not what the employer sells.

☐ Check whether the claim is a sexual assault or harassment claim, which a claimant may elect to bring in court notwithstanding a pre-dispute agreement.

☐ Check whether a government agency can act instead. An agency is not bound by a private agreement.

☐ Comply with any pre-arbitration notice or mediation step. ⚠ These are usually conditions precedent, and skipping them can get a demand dismissed.

☐ Calendar the limitations deadline, including any contractual shortening. See calculating and preserving a limitations deadline.

☐ Search for an existing mass filing against the same company on the same theory.

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Stage 3 — Moving to compel arbitration

☐ Move in your first responsive filing. Morgan v. Sundance, Inc., 596 U.S. 411 (2022), permits waiver by litigation conduct without any showing of prejudice.

☐ Attach and authenticate the agreement. Screenshots of the interface, account records, the signature page, and a declaration establishing assent.

☐ Establish an independent basis for federal jurisdiction. The FAA supplies none. See 28 U.S.C. § 1332.

☐ Quote the scope language and map it to each claim.

☐ Invoke the delegation provision if there is one — the court may go no further.

☐ Ask for a stay under § 3, not dismissal. A stay preserves the court's role for confirmation and avoids an appealable final judgment.

☐ Do not serve merits discovery while the motion is pending. It is waiver evidence.

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Stage 4 — Resisting arbitration

Build the opposition in layers, in this order:

☐ Layer 1 — No agreement was formed. No signature, no assent, no authority, forgery, minority. ⭐ Formation is always for the court, because there is nothing to sever.

☐ Layer 2 — The delegation provision specifically fails. Attack it on its own terms, with its own facts. A brief that skips this layer usually never reaches the rest.

☐ Layer 3 — The arbitration clause specifically is unconscionable. Procedural: adhesion, surprise, no opportunity to read, no opt-out. Substantive: unaffordable fees, distant forum, shortened period, one-sided court access, remedy stripping.

☐ Layer 4 — The § 1 exemption applies. Court decides this before any delegation clause takes effect — New Prime Inc. v. Oliveira, 586 U.S. 105 (2019).

☐ Layer 5 — The claim is outside the scope.

☐ Layer 6 — The movant waived by litigating. Chronicle every filing and every discovery request they served.

☐ Support the fee argument with evidence. An affidavit of income and assets plus the provider's published fee schedule. Assertions fail; arithmetic works.

☐ Frame every argument as general contract law. AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), preempts arbitration-specific rules.

☐ ⚠ Do not rely on "the class waiver makes my claim uneconomical." American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013), rejects it.

☐ Preserve the appeal. An order refusing to compel is immediately appealable under § 16; an order compelling generally is not.

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Stage 5 — Filing the demand

☐ Use the provider named in the clause. Filing with the wrong provider wastes the fee and, sometimes, the limitations period.

☐ State the parties, the agreement, each claim, the relief sought, and the desired locale.

☐ Attach the agreement and, where the clause requires it, proof of the pre-arbitration notice step.

☐ Pay the claimant filing fee — capped at a nominal amount under most consumer and employment rule sets.

☐ Serve the respondent as the rules require, not merely as you would serve a complaint.

☐ Calendar the respondent's answering deadline and any counterclaim window.

☐ Preserve evidence immediately. Arbitration has less discovery, so what you hold matters more. See the civil discovery and evidence preservation toolkit.

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Stage 6 — Selecting the arbitrator

☐ Read every disclosure. Prior appointments involving the parties or counsel, financial ties, and any interest in the outcome.

☐ Research each candidate. Published awards, prior positions, employment history, writing, and the industries they have served.

☐ Consider the profile you actually want — an industry expert for a technical dispute, a retired judge for a legal one, a former practitioner from your side of the docket where the rules allow.

☐ Strike and rank deliberately. Ranking is where most parties give up an advantage by treating it as a formality.

☐ ⚠ Object to a disclosure problem immediately. Waiting until after an adverse award is treated as waiver of the "evident partiality" ground under § 10.

☐ Ask for a three-member panel only if the stakes justify it. It roughly triples the arbitrator cost.

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Stage 7 — The preliminary hearing

Ask for these on the record:

☐ A reasoned award in writing. Free to request; invaluable if you ever need to challenge or explain the result.

☐ A defined document exchange with dates.

☐ A small number of targeted depositions, justified by specific issues, if the case genuinely needs them.

☐ A schedule for expert disclosure if technical proof is required.

☐ A pre-hearing brief and exhibit exchange date.

☐ A court reporter. ⭐ Without a transcript, a later motion to vacate is nearly hopeless.

☐ A ruling on confidentiality — do not assume it exists by default.

☐ Clarity on dispositive motions. Many rule sets permit them only with leave; ask early.

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Stage 8 — Preparing for the hearing

☐ Front-load everything. Your pre-hearing brief and exhibits are close to the whole case.

☐ Build the exhibit set as a navigable binder or bookmarked file. One person decides everything; make it easy.

☐ Prepare witnesses for a professional audience, not a jury. Shorter, plainer, less theatrical.

☐ Expect hearsay to be admitted. Argue weight, not admissibility. The rules in Federal Rule of Evidence 802 and Rule 803 do not bind the arbitrator.

☐ Subpoena third parties through the arbitrator under § 7, and plan for the possibility that pre-hearing document subpoenas are unavailable in your circuit.

☐ Prepare a damages exhibit that a non-specialist can follow in ninety seconds.

☐ Draft the award you want and use it as the outline of your closing.

☐ Track every provider deadline and invoice. ⚠ Administrative closure for unpaid fees can end a case that was going well.

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Stage 9 — After the award

☐ Read the award the day it arrives and calendar three dates: the correction window (commonly 20 days), the vacatur deadline (three months), and the confirmation window (one year under § 9).

☐ Request correction only for computational, typographical, or similar errors. Reconsideration of the merits is not available.

☐ To confirm: apply to a court with jurisdiction; confirmation is mandatory absent vacatur, modification, or correction.

☐ To vacate, identify a § 10 ground: corruption or fraud; evident partiality; misconduct in refusing evidence or a postponement; or exceeding powers.

☐ ⚠ Do not argue the arbitrator was wrong on the law. Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008), and Oxford Health Plans LLC v. Sutter, 569 U.S. 564 (2013), foreclose it.

☐ If the panel awarded relief the contract expressly barred, frame it as exceeding powers — the framing that occasionally succeeds, as in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662 (2010).

☐ Enforce the judgment like any other. See judgment enforcement and debtor exemptions and collecting a judgment or protecting exempt property.

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Stage 10 — When the business will not pay its fees

☐ Document every invoice, due date, and non-payment notice. The record is the argument.

☐ Invoke the provider rule permitting suspension or termination for non-payment.

☐ Check your state's statute. Several treat a drafting party's failure to pay within a set period as a material breach that waives the right to compel and permits return to court, sometimes with mandatory fee sanctions.

☐ Withdraw under the applicable rule rather than dismissing your own claim.

☐ Confirm the limitations period was tolled during the arbitration.

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Quick decision table

Situation	First move
You are about to sign	Find the opt-out; check fees and locale
You were just sued and have a clause	Move to compel in your first filing
You want to avoid arbitration	Attack formation, then the delegation provision specifically
You drive or move goods for work	Raise the § 1 exemption first
The claim is small	Check the small claims carve-out
The claim is one of thousands	Look for a mass filing
The clause requires mediation first	Do it — it is a condition precedent
The award went against you	Calendar three months and look for a § 10 ground, not a legal error
The company will not pay fees	Document, invoke the rule, consider returning to court

Worksheet A — Clause audit

Fill this in for any arbitration clause you encounter. Ten minutes, and it tells you almost everything.

Item	Where in the clause	Your entry	Concern?
Provider and rule set
Scope language ("relating to" vs. "arising under")
Delegation of arbitrability
Class/collective waiver
Opt-out right and deadline
Filing fee and fee allocation
Hearing locale
Number of arbitrators
Contractual limitations period
Remedy limitations (punitive, fees, injunctive)
Small claims carve-out
Provisional relief carve-out
Confidentiality obligation and on whom
Pre-arbitration notice/mediation step
Choice of law, and whether it differs from FAA coverage
Amendment right — unilateral? retroactive?
Award form (standard, reasoned, findings)

⭐ Two rows do most of the work: the fee allocation and the opt-out. A clause with affordable fees and a real opt-out is hard to attack. A clause with neither is where unconscionability arguments live.

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Worksheet B — Waiver-by-litigation log

If the other side has a clause and is litigating anyway, keep this from day one. It is the exhibit to your opposition.

Date	What they filed or served	Merits-directed?	Notes

Entries that matter most: a motion to dismiss on the merits; answers with affirmative defenses and no arbitration demand; propounded discovery; a scheduling conference appearance without reservation; a summary judgment motion; participation in a settlement conference. Under Morgan v. Sundance, Inc., 596 U.S. 411 (2022), you do not have to show that any of it prejudiced you.

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Worksheet C — Fee affordability affidavit outline

The single most effective attack on an unaffordable clause is arithmetic, sworn to.

1. Monthly gross and net income, with pay records attached.
2. Monthly obligations — housing, food, transportation, medical, child support, debt service.
3. Liquid assets available.
4. The provider's published fee schedule for a case of this size, with the page attached.
5. The arbitrator's disclosed hourly rate and the estimated hearing length.
6. The total the claimant would have to advance, and when.
7. The comparison to court filing fees and any fee-waiver right that would be available there.

⚠ Attach the documents. Courts reject affordability arguments made in a brief and grant them when made in an affidavit with exhibits.

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Worksheet D — Hearing-day file

Assemble one week out:

☐ Pre-hearing brief, with the requested award attached as a proposed order. ☐ Exhibit binder, tabbed and indexed, with a duplicate for the arbitrator and one for the witness. ☐ Witness list with the three points each witness must establish. ☐ Cross-examination outlines keyed to exhibit tabs. ☐ Damages summary, one page, with the arithmetic shown. ☐ The agreement itself, highlighted. ☐ The provider's rules, tabbed to the provisions you may need to cite. ☐ Deadline sheet — correction window, vacatur deadline, confirmation window — prepared in advance so nothing is calculated in the disappointment of a loss. ☐ Court reporter confirmed.

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Special situations

A minor or an incapacitated adult signed, or someone signed for them. Formation and authority are for the court. Whether a power of attorney reached the waiver of a jury trial is often dispositive. See executing a durable power of attorney and advance directive and the incapacity planning and surrogate decision making toolkit.

The clause is in a nursing home admission packet. Attack authority first, then the circumstances of signing, then any condition-of-admission problem. See investigating and pursuing a nursing home neglect claim.

The claim is against a broker or investment adviser. Industry arbitration is nearly universal and has its own eligibility and expungement rules. See investigating investment losses and filing a securities claim.

The claim is an employment discrimination claim. You may still file an administrative charge, and the agency may sue regardless of your agreement. See filing and pursuing an employment discrimination charge.

The dispute is with a home improvement contractor. Industry form contracts often tier negotiation, mediation, then arbitration. Comply with each step in order. See hiring a contractor and resolving a construction dispute.

You are one of thousands with the same claim. Aggregate through mass filing rather than through a class you cannot certify. See joining, opting out of, or bringing a class action.

Timeline: a consumer arbitration from demand to award

Use this to set expectations and to spot a schedule that is drifting.

Week	Event	Your task
0	Pre-arbitration notice sent	Keep proof of delivery; start the response clock
4	Notice period expires	Confirm no resolution, in writing
5	Demand filed and fee paid	Serve as the rules require, not as you would serve a complaint
7	Respondent answers; counterclaims possible	Calendar the reply deadline
9	Provider circulates arbitrator list with disclosures	Research every candidate; strike and rank on the merits
12	Arbitrator appointed	Read the disclosures again; object now or not at all
14	Preliminary hearing	Request a reasoned award, a document exchange, and a reporter
18	Document exchange	Produce fully; you will not get a second chance to add
24	Pre-hearing briefs and exhibit exchange	This is the case; treat it that way
26	Hearing	Bring the hearing-day file from Worksheet D
28	Post-hearing briefs	Answer the question the arbitrator actually asked at the hearing
32–36	Award issued	Calendar correction, vacatur, and confirmation dates the same day

⚠ A schedule that slips past week 40 without an explanation usually means an unpaid invoice somewhere. Ask the provider directly.

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The five most common mistakes

1. Litigating first, then remembering the clause. After Morgan v. Sundance, that is waiver, and no prejudice showing is required.
2. Attacking the contract instead of the clause. Under Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395 (1967), and Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), that argument goes to the arbitrator.
3. Skipping the delegation layer. If the clause delegates and you do not attack the delegation specifically, the court never reaches your unconscionability argument.
4. Treating the pre-hearing submission as a warm-up. There is no motion practice to fix it later and no discovery left to fill a gap.
5. Missing the three-month vacatur deadline while deciding whether to challenge the award.

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A note for people without a lawyer

Arbitration is one of the few forums where self-representation is genuinely workable, because the procedure is simpler and the decision-maker is used to explaining it.

☐ Call the provider's case administrator. They will tell you the procedure, the deadlines, and the forms. They cannot give legal advice, and you should not ask. ☐ Ask for the fee waiver or reduction if you qualify. Most consumer rule sets have one, and it is rarely advertised. ☐ Write your story in one page, then attach the documents that prove each sentence. That is a pre-hearing brief. ☐ Bring three copies of everything. ☐ Answer the arbitrator's questions directly. They are trying to find the facts, not to trap you.

See representing yourself in civil court and the self-represented litigant's toolkit for the habits that transfer.

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Related Documents

• The Clause You Clicked Past: How Arbitration Agreements Take Your Case Out of Court
• Arbitration: A Comprehensive Guide to Agreements, Compelling, Hearings, Awards, and Vacatur
• The Arbitration Agreement and Award Toolkit
• Preparing for and Attending a Mediation: A Practical Checklist
• Joining, Opting Out of, or Bringing a Class Action: A Practical Checklist
• Cancelling a Contract, Membership, or Timeshare: A Practical Checklist