The Arbitration Agreement and Award Toolkit

Dispute Resolution > Arbitration | Published 25 October 2023 - Updated 21 October 2025 | UpLaw - uplaw.us

⚠ Everything here is drafted for domestic arbitration under the Federal Arbitration Act, 9 U.S.C. §§ 1–16. Adapt before use. Nothing here is legal advice for a particular matter.

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Tool 1 — The clause audit grid

Element	Found?	Text	Risk to a claimant	Risk to a drafter
Provider and rules			Unknown fees	Provider unavailability
Scope			Too narrow to cover the claim	Too broad to be enforceable as to non-signatories
Delegation			Court never reaches your arguments	Delegation itself attacked
Class/collective waiver			No aggregation	Mass filing exposure
Opt-out			Expired unnoticed	None — it strengthens assent
Fees			Unaffordable	Unconscionability finding
Locale			Travel cost	Same
Limitations shortening			Claim time-barred	Void as remedy-stripping
Remedy limits			No punitive or fee award	Prospective-waiver attack
Small claims carve-out			Missed cheaper route	None
Confidentiality			Cannot compare outcomes	Overbreadth evidence
Unilateral amendment			Terms change under you	Illusory-promise attack

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Tool 2 — A model clause, with alternatives

Dispute Resolution. Any dispute, claim, or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, shall be determined by binding arbitration administered by [Provider] under its [Rules] then in effect. The seat of the arbitration shall be [city, state]. The arbitration shall be conducted by one arbitrator, and the arbitrator shall issue a reasoned award in writing.

[Delegation — include only if intended.] The arbitrator, and not any court, shall have exclusive authority to resolve any dispute concerning the interpretation, applicability, enforceability, or formation of this arbitration provision, including any claim that all or part of it is void or voidable.

[Fees.] [Company] shall pay all filing, administrative, and arbitrator fees in excess of the amount [Claimant] would pay to file the same claim in the state court of general jurisdiction where [Claimant] resides.

[Carve-outs.] Either party may bring an individual claim in small claims court, and either party may seek provisional injunctive relief in a court of competent jurisdiction to protect confidential information or intellectual property pending arbitration.

[Opt-out.] You may reject this provision by sending written notice to [address] within 45 days of [signing/account opening]. Rejection will not affect any other term.

⭐ The fee sentence and the opt-out sentence are the two that make a clause durable. A drafter who includes both removes the arguments that actually defeat clauses.

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Tool 3 — Opt-out letter

[Date]

[Company — Arbitration Opt-Out, address from the agreement]

Re: Rejection of arbitration provision — [account/employee/order number]

I am rejecting the arbitration provision in the [agreement name] dated [date], as that provision permits. This rejection applies to all disputes between us. I am not rejecting any other term of the agreement.

Name: [name] · Account/ID: [number] · Address: [address] · Signature: ________

Sent by certified mail, return receipt requested, on [date].

☐ Send by certified mail. ☐ Keep the receipt with your account records. ☐ Calendar the deadline the day you open the account.

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Tool 4 — Motion to compel arbitration: outline

1. Introduction. One paragraph: an agreement exists, it covers these claims, the court must compel and stay.
2. Jurisdiction. Independent basis required — the FAA creates none. Cite 28 U.S.C. § 1332 or the federal claim.
3. The agreement. Attach it; authenticate through a declaration describing the signing or the account interface.
4. Assent. Screenshots, click records, signature, or acknowledgment form.
5. Scope. Quote the operative words; map each claim.
6. Delegation. If present, the analysis stops here — Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010).
7. Severability. Any attack on the contract as a whole belongs to the arbitrator — Prima Paint, 388 U.S. 395 (1967); Buckeye, 546 U.S. 440 (2006).
8. Relief. Compel under § 4; stay under § 3.

⚠ File this in your first responsive pleading. Delay is waiver after Morgan v. Sundance, Inc., 596 U.S. 411 (2022).

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Tool 5 — Opposition: the layered brief

I. No agreement was formed. [Formation is always for the court. No signature; no authority; no assent; forgery; minority.]

II. The delegation provision is specifically unenforceable. [Attack it on its own terms and with its own facts — the fee provision applies to the arbitrability phase; the provision is buried; there was no opportunity to read it.]

III. The arbitration provision is unconscionable. [Procedural: adhesion, surprise, no opt-out, presented at hire or admission. Substantive: fee schedule attached; distant locale; 180-day limitations period; one-sided court access; punitive damages barred.]

IV. The § 1 exemption applies. [Court decides first — New Prime Inc. v. Oliveira, 586 U.S. 105 (2019); Bissonnette, 601 U.S. 246 (2024).]

V. The claims fall outside the scope.

VI. Movant waived by litigating. [Attach the waiver log.]

⭐ Order matters. A brief that argues unconscionability without first defeating the delegation provision loses without the court reading section III.

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Tool 6 — Pre-arbitration notice letter

Most modern clauses require this, and it is a condition precedent.

[Date] — Sent by [method the clause requires]

Re: Notice of Dispute under Section [__] of the [Agreement]

Claimant: [name, address, account/employee number] Nature of the dispute: [two or three sentences of facts, with dates] The provision breached or law violated: [specific] Relief requested: [a number, and how it is calculated] Response requested by: [date the clause allows]

If we do not resolve this within the period the Agreement provides, I will file a demand for arbitration with [Provider].

☐ Send exactly as the clause specifies. ☐ Keep proof of delivery. ☐ Calendar the response deadline. ☐ Do not skip this step — it is the most common reason a demand is dismissed on arrival.

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Tool 7 — Demand for arbitration

Demand for Arbitration — [Provider]

Claimant: [name, address, counsel] Respondent: [name, address, registered agent] Agreement: [title, date, section] — attached as Exhibit A Locale requested: [city, state — the claimant's home locale where the rules allow] Claims: [1] Breach of contract; [2] Violation of [statute]; [3] [tort] Statement of the dispute: [one page of facts with dates] Relief sought: $[amount], plus interest, costs, and attorney's fees as provided by [statute/contract] Arbitrator preference: One arbitrator, reasoned award requested Pre-arbitration notice: Sent [date]; attached as Exhibit B

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Tool 8 — Arbitrator research and objection

Research checklist

☐ Published awards and decisions. ☐ Prior appointments involving either party, either counsel, or either insurer. ☐ Professional background — which side of the docket, which industry. ☐ Writing and speaking, especially on the issue in your case. ☐ Bar and licensing history. See professional licensing and occupational discipline.

Objection language

Claimant objects to the appointment of [name] and requests removal under [Rule __]. The disclosure states [X]. That relationship — [describe] — creates a reasonable impression of partiality. Claimant makes this objection promptly upon receipt of the disclosure and does not waive it.

⚠ Object on receipt. An objection first raised after an adverse award is treated as waived under the "evident partiality" ground of § 10.

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Tool 9 — Preliminary hearing request list

Read this into the record at the scheduling conference:

☐ A reasoned award in writing. ☐ A court reporter at the hearing, at [allocation]. ☐ Document exchange by [date], with a defined scope. ☐ [N] depositions per side, limited to [issues]. ☐ Expert disclosure by [date], rebuttal by [date]. ☐ Pre-hearing briefs and exhibit exchange by [date]. ☐ Leave requirements for dispositive motions clarified now. ☐ Confidentiality addressed expressly — it is not automatic. ☐ Third-party evidence plan, given the limits on § 7 pre-hearing subpoenas.

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Tool 10 — Pre-hearing brief outline

1. The question the arbitrator must answer, in one sentence.
2. The undisputed facts, with exhibit cites.
3. The disputed facts, and why yours is the better account.
4. The governing provision or statute, quoted.
5. Application, element by element.
6. Damages, with the arithmetic on one page.
7. The proposed award, attached.

⭐ In court, this document would be a preview. In arbitration it is substantially the case. Write it accordingly.

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Tool 11 — Award review sheet

The day the award arrives:

Question	Answer
Date of delivery (starts the clock)
Result on each claim
Monetary amount and interest
Fees and costs allocated
Reasoned, or result only
Any computational or typographical error
Any relief the agreement expressly barred
Any evidence the arbitrator refused to hear
Any undisclosed relationship discovered after the fact
Correction deadline (commonly 20 days)
Vacatur deadline (three months)
Confirmation window (one year, § 9)

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Tool 12 — Motion to vacate: outline

1. Timeliness — served within three months of delivery.
2. The ground, stated as one of the four in § 10: corruption or fraud; evident partiality; misconduct in refusing a postponement or refusing pertinent evidence; exceeding powers.
3. The record — transcript cites, the disclosure, the exhibit refused.
4. Why this is not a legal-error argument. Address 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), head-on.
5. The exceeded-powers framing, where the award grants relief the agreement forbade — compare Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662 (2010).
6. Relief — vacatur and rehearing before a new arbitrator.

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Tool 13 — Petition to confirm

Petitioner applies under 9 U.S.C. § 9 for an order confirming the award entered [date], attached as Exhibit A, together with the arbitration agreement attached as Exhibit B, and for entry of judgment thereon. No motion to vacate, modify, or correct has been served within the time allowed. Confirmation is mandatory absent such relief.

Then enforce like any judgment: see judgment enforcement and debtor exemptions, the judgment collection and exemption toolkit, and Rule 69.

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Tool 14 — Fee non-payment letter

Re: [Case No.] — Respondent's failure to pay required fees

The provider invoiced Respondent $[amount] on [date], due [date]. Payment has not been made. Under [Rule __], non-payment permits suspension or termination of this proceeding. Under [state statute, if applicable], Respondent's failure to pay within [period] constitutes a material breach of the arbitration agreement, waives the right to compel arbitration, and permits Claimant to withdraw the claim and proceed in court, with fees and costs.

Claimant requests that the provider [suspend/terminate] and issue written confirmation. Claimant reserves all rights, including tolling of any limitations period during the pendency of this proceeding.

☐ Attach the invoices. ☐ Attach the rule and statute. ☐ Do not voluntarily dismiss your own claim.

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Tool 15 — Mass filing checklist (claimant side)

☐ Verify each claimant individually — name, account, dates, damages. ⚠ Unverified claimants are the respondent's best defense. ☐ Confirm each claimant's agreement version and whether any opted out. ☐ Prepare a common brief plus an individualized one-page statement per claimant. ☐ Budget claimant-side filing fees and confirm the respondent's fee obligation in each version of the clause. ☐ Anticipate batching and bellwether provisions; read them before filing, not after. ☐ Track every provider invoice to the respondent — non-payment is leverage. ☐ Coordinate with any parallel public enforcement. See consumer fraud and financial exploitation.

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Tool 16 — Deadline calendar

Event	Timing
Opt-out	30–60 days from signing
Pre-arbitration notice period	As the clause states
Motion to compel	First responsive filing
Arbitrator objection	On receipt of disclosures
Correction of award	~20 days (provider rules)
Motion to vacate, modify, correct	Three months from delivery
Petition to confirm	Within one year (§ 9)
Appeal of denial of a motion to compel	Immediate, under § 16

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Tool 17 — Authority reference

Statute: 9 U.S.C. § 1 · § 2 · § 3 · § 4 · § 5 · § 7 · § 9 · § 10 · § 16

Cases: Prima Paint (1967) · Circuit City (2001) · Buckeye (2006) · Hall Street (2008) · Stolt-Nielsen (2010) · Rent-A-Center (2010) · Concepcion (2011) · Oxford Health (2013) · Italian Colors (2013) · Epic Systems (2018) · New Prime (2019) · Lamps Plus (2019) · Saxon (2022) · Morgan v. Sundance (2022) · Coinbase (2023) · Bissonnette (2024)

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Tool 18 — Routing table

If the dispute is about…	Start here
Wages or overtime	Wage and hour law
A firing	Termination, severance, and final pay
Discrimination	Employment discrimination charges
A bank account or payment	Consumer banking and payments
A subscription or membership	Consumer contracts and cancellation rights
Nursing home care	Nursing home and assisted living neglect
Investments	Investor rights and securities claims
A remodel	Residential construction and home improvement
A franchise	Franchising
A union grievance	Labor relations and unions

Tool 19 — Waiver-by-litigation log

Keep it from the first appearance. It is the exhibit that wins the opposition.

Date	Filing or act by the movant	Merits-directed?	Cite in the record

What counts most: a motion to dismiss addressed to the merits; an answer with affirmative defenses and no reservation of arbitration; propounded discovery; participation in a scheduling order; a summary judgment motion; a settlement conference. After Morgan v. Sundance, Inc., 596 U.S. 411 (2022), no prejudice showing is required — the conduct alone can forfeit the clause.

⭐ The mirror-image tool for a defendant: a one-line calendar entry on the day you are served that reads "move to compel before doing anything else."

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Tool 20 — Evidence plan for a forum with little discovery

Arbitration gives you less. Plan for that before you file, not after.

☐ Inventory what you already hold. Contracts, invoices, statements, texts, emails, photographs, account histories. ☐ Identify the three documents you must have from the other side, and nothing else. Narrow requests get granted; broad ones get denied and cost you credibility. ☐ Identify third-party evidence early. Section 7 authority is contested for pre-hearing subpoenas in several circuits; plan for a hearing-day appearance or a stipulated production. ☐ Get declarations while witnesses are cooperative. In arbitration you may never get to depose them. ☐ Preserve everything on your own side. See the civil discovery and evidence preservation toolkit and serving, answering, and enforcing discovery. ☐ Convert documents into a story. One page, chronological, with an exhibit cite for every sentence.

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Tool 21 — Damages presentation

One page, and it should be understandable in ninety seconds.

Component	Amount	Source	Exhibit
Out-of-pocket loss
Amounts wrongly charged
Interest at [rate] from [date]
Consequential loss
Statutory damages or penalties
Attorney's fees under [statute/contract]
Costs and provider fees
Total

⚠ Arbitrators award what they can compute. A damages theory that requires the arbitrator to build the spreadsheet themselves is routinely discounted.

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Tool 22 — Settlement leverage checklist

Most arbitrations settle. Know what you are holding.

☐ Fee exposure. In consumer and employment matters the respondent typically pays the provider and arbitrator fees, which can approach or exceed the claim. ☐ The reasoned award. A written, reasoned decision against a company is a document that can be used by the next claimant, notwithstanding confidentiality. Respondents price that in. ☐ Volume. One claim is a nuisance; four hundred is a budget line. ☐ Statutory fee-shifting. Where a statute shifts fees, the exposure grows with delay. ☐ Non-payment risk. A respondent that misses invoices may lose the clause entirely. ☐ Time. Arbitration is fast, which cuts both ways — a respondent that wants delay has fewer tools than in court.

For the negotiation itself, see mediation advocacy and negotiation and preparing for and attending a mediation.

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Tool 23 — Settlement agreement terms specific to arbitration

☐ Dismissal or withdrawal mechanics stated in the provider's terms, not court terms. ☐ Who bears outstanding provider and arbitrator fees. ☐ Whether the award, if any, is vacated by stipulation or simply not confirmed. ☐ Release scope — this claim, this account, or all claims through the date. ☐ Confidentiality — narrow, mutual, and with a carve-out for legal and tax advisers and for compelled disclosure. ☐ No-rehire or no-return provisions, in employment matters. ☐ Tax treatment and reporting, including allocation between wages and non-wage damages. See tax controversy for individuals. ☐ Payment deadline with a consequence — a confession of judgment or a stipulated award if payment is missed.

⭐ The last box is the one people forget. A settlement without a payment-default remedy converts a resolved dispute into a new collection matter.

Tool 24 — Frequently needed short answers

Keep these where you can find them when a client or a counterparty asks.

Question	Answer to give
"Is arbitration binding?"	Yes. The award is confirmable into a judgment and reviewable only on the four grounds in § 10.
"Can I still go to small claims?"	Often yes — most consumer clauses carve it out expressly. Check first.
"Do I have to pay half the arbitrator?"	Usually not in consumer or employment matters; provider rules shift most of it.
"Can I file with the EEOC anyway?"	Yes. An agreement between private parties does not bind an agency.
"What if I never saw the terms?"	Then formation is contested, and a court decides — not the arbitrator.
"Can they change the terms later?"	Sometimes. A unilateral, retroactive amendment right is attackable as illusory.
"How long will this take?"	Commonly seven to nine months from demand to award in a straightforward consumer case.
"Is it confidential?"	The provider and arbitrator usually are bound; the parties are not unless they agreed.
"What happens if they ignore the award?"	Confirm it under § 9 and collect on the judgment.

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Tool 25 — A drafter's post-mortem

Run this after any arbitration involving your own form, whatever the outcome.

☐ Did the clause do what it was written to do? Compelled promptly, or fought for a year? ☐ What did the opposition attack? That is the paragraph to rewrite. ☐ What did the fees actually cost? Compare to the litigation you avoided. ☐ Would a mass filing have been survivable? If not, add batching and a real informal-resolution step before you need them. ☐ Was the award reasoned? If you want reasoned awards, say so in the clause rather than requesting them case by case. ☐ Did the opt-out get used? If almost nobody used it, keep it — it is free assent insurance. ☐ Did any provision get severed? A severed provision is a warning about the next one.

⚠ The most expensive drafting error is not a clause that fails. It is a clause that succeeds at eliminating class treatment and then concentrates the same claims into individual filings the drafter agreed to fund.

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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
• Compelling, Resisting, or Preparing for Arbitration: A Practical Checklist
• The Mediation and Negotiation Toolkit
• The Class Action and Mass Claim Toolkit
• The Civil Discovery and Evidence Preservation Toolkit