Enforceability of mandatory arbitration clauses

An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract. (DC ST § 16-4406) Any provision in an insurance policy with a consumer that requires binding arbitration is void and unenforceable. A provision for mandatory binding arbitration within a consumer arbitration agreement is void and unenforceable except to the extent federal law provides for its enforceability. (DC ST § 16-4403)

There is a strong presumption in favor of arbitration when the parties have entered into a contract containing an arbitration clause. Weatherly Cellaphonics Partners v. Hueber, 726 F. Supp. 319 (D.D.C. 1989). Whether a party has waived its right to arbitration constitutes a question of law that is reviewed de novo.  TRG Customer Solutions, Inc. v. Smith, 226 A.3d 751 (D.C. 2020). 

Waiver requires active participation or other action inconsistent with the right to arbitration. Hercules & Co. v. Beltway Carpet Serv., Inc., 592 A.2d 1069 (D.C. 1991). The test for determining whether there has been a waiver of the right to arbitration is “whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.” Woodland Ltd. P’ship v. Wulff, 868 A.2d 860, 863 (D.C. 2005) (citing Nat’l Found. for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772 (D.C. Cir. 1987)).