How to File a Motion to Compel Arbitration: Filing and Defenses

To file a motion to compel arbitration, you need a written arbitration agreement that covers the dispute, a motion package (the motion itself, a supporting declaration authenticating the contract, and a proposed order), and proper filing and service on the opposing party in the court where the lawsuit is pending. The motion asks the judge to enforce the contract’s arbitration clause under the Federal Arbitration Act and stay the lawsuit while the dispute moves to a private arbitrator. Before you spend time drafting, confirm the agreement is enforceable, the claim isn’t one federal law removes from mandatory arbitration, and you haven’t already waited too long.

Start With the Agreement

Everything rests on a written agreement to arbitrate. The FAA declares that a written arbitration provision in any contract involving commerce is “valid, irrevocable, and enforceable,” subject only to grounds that would invalidate any contract, such as fraud or duress.¹ That statutory language is the tailwind behind your motion, and courts read it as a strong presumption in favor of enforcing arbitration clauses.

Two things have to be clear on the face of the agreement. Both parties consented, usually shown by signatures or a documented exchange accepting the terms. And the clause covers the dispute. Broad language like “any dispute arising under this agreement” sweeps in most claims; narrower clauses may not. The court will line up the plaintiff’s claims against the scope of the clause, and if they fall outside it, the motion fails no matter how well-drafted the rest of the contract is.

Check Whether the Claim Can Be Arbitrated at All

Some disputes are off-limits regardless of what the contract says. Two carve-outs matter most.

Under the Ending Forced Arbitration Act, a person alleging sexual assault or sexual harassment can choose to litigate in court, and no pre-dispute arbitration agreement can override that choice.² The statute defines these disputes broadly to cover any claim of nonconsensual sexual contact or conduct alleged to constitute sexual harassment under federal, tribal, or state law.³ Whether the EFAA applies is decided by a court, not an arbitrator, regardless of any delegation clause.

The FAA also excludes contracts of employment for workers engaged in interstate or foreign commerce, including truck drivers, railroad employees, and seamen. The Supreme Court has said the exemption turns on the worker’s actual job duties, not the employer’s industry. A bakery delivery driver moving goods across state lines can qualify even though the employer is a food company.

File Before You Waive the Right

This is where motions to compel most often get lost. If you participate in the lawsuit too actively before moving to compel, the court can find you waived arbitration. In 2022 the Supreme Court held that the opposing party doesn’t need to show it was harmed by the delay. Litigating too long is enough on its own.⁴

The safest approach is to move before doing any substantive litigation. At minimum, raise arbitration as a defense in your very first responsive pleading. If a strategic reason genuinely prevents an immediate motion, document your intent to arbitrate at every stage. Courts have preserved the right where a party consistently asserted it in pleadings and opposed class certification, but that’s a narrow path requiring deliberate preservation from day one.

What Goes in the Motion Package

A typical filing has three pieces: the motion, a supporting declaration, and a proposed order.

The motion is a written request to the court. It identifies the case, names the parties, and asks the judge to order arbitration under the FAA. The legal argument establishes that a written arbitration agreement exists, that the claims fall within its scope, and that you have not waived the right to enforce it. The FAA lets a party who has been refused arbitration petition a federal district court for an order directing arbitration to proceed as the agreement requires.⁵ Also ask the court to stay the lawsuit while arbitration is pending.

p>Attach a complete, legible copy of the contract as an exhibit. Authenticate it with a declaration signed under penalty of perjury confirming it is a true and accurate copy of the original. The signer should have firsthand knowledge: the person who executed the contract, or a records custodian who can explain how it was stored and retrieved.

Authenticating an Electronic Signature

Electronic signatures draw extra scrutiny. A bare statement that the other party “e-signed the agreement” rarely holds up. The declaration should walk through the process: how the agreement was delivered, how the recipient’s identity was verified, how the signature or checkbox was captured, and how the system confirmed the signature was that person’s act. Courts routinely reject declarations that skip the technical mechanics.

The Proposed Order

The proposed order is a short pre-drafted document mirroring what the motion requests: an order compelling arbitration and staying the litigation. Judges expect one, and leaving it out signals inexperience.

Filing and Serving the Motion

File the package in the court where the lawsuit is pending. Federal courts and many state courts require electronic filing through their portal; some state courts still accept paper. Filing fees for motions are generally modest, often ranging from nothing to around $50, depending on jurisdiction.

Serve the motion on every party. Acceptable methods under the federal rules include handing the papers to the person, leaving them at the person’s office with someone in charge, mailing them to the last known address, or sending them electronically if the recipient has consented to electronic service in writing.⁶ Federal e-filing systems handle service automatically for registered users. State rules vary; check them before assuming the federal rules apply.

The FAA requires at least five days’ written notice of the motion to the opposing party.⁵ Local rules may impose additional notice or briefing schedules, so review the court’s standing orders before filing.

Defenses to Address Up Front

Once served, the other side will oppose. Anticipating the usual arguments and answering them in your opening brief is stronger than reacting to them on reply.

The most common defense is unconscionability, arguing the clause is fundamentally unfair. Courts look at two components: whether the clause was buried in a take-it-or-leave-it contract with no real chance to negotiate, and whether the terms themselves are unreasonably one-sided. An employment agreement that forces workers to arbitrate every claim while letting the employer sue freely in court is the sort of lopsided structure courts often reject. Both elements usually need to be present, though an extreme showing on one can compensate for a weaker showing on the other.

Expect scope arguments too, especially against narrow clauses, and expect waiver arguments if there was any delay. Address these head-on. A motion that ignores obvious counterarguments looks like nobody thought them through.

After the Court Rules

The court may hold a hearing or decide on the papers. If the judge finds a valid agreement covering the claims, the court must order arbitration.⁵ The lawsuit is stayed rather than dismissed, keeping the court available for later enforcement issues like confirming or vacating the award.⁷

If the Motion Is Denied

A denial isn’t necessarily the end. The FAA gives an immediate right to appeal an order denying a motion to compel, without waiting for final judgment.⁸ The Supreme Court has held that once the appeal is filed, the district court must stay its proceedings automatically while the appeal is pending.⁹ The opposing party cannot force you to keep litigating or meet discovery deadlines while the appellate court considers whether arbitration should have been ordered.

If the Motion Is Granted

The parties move into the arbitration process the contract specifies. Most clauses designate a provider like the American Arbitration Association or JAMS, and the provider’s rules govern arbitrator selection, discovery, and hearings. Expect real costs. JAMS charges a $2,000 filing fee for a two-party dispute, though employment arbitration caps the employee’s share at $400 and consumer arbitration caps the consumer’s share at $250.¹⁰ AAA has a similar structure. If the clause requires the company to cover all costs, the clause controls. One practical caution: if the party designated to pay the fees refuses, providers like JAMS will suspend the arbitration, and the other side can return to court. Plan for the post-order logistics before you file, not after you win.

1
GovInfo. 9 USC 2 – Validity, Irrevocability, and Enforcement of Agreements to Arbitrate
2
Office of the Law Revision Counsel. 9 USC 402 – No Validity or Enforceability
3
Office of the Law Revision Counsel. 9 USC 401 – Definitions
4
National Association of Attorneys General. Supreme Court Report: Morgan v. Sundance, Inc., 21-328
5
Office of the Law Revision Counsel. 9 USC 4 – Failure to Arbitrate Under Agreement; Petition to United States Court
6
Legal Information Institute. Federal Rules of Civil Procedure Rule 5 – Serving and Filing Pleadings and Other Papers
7
Office of the Law Revision Counsel. 9 USC 3 – Stay of Proceedings Where Issue Therein Referable to Arbitration
8
Office of the Law Revision Counsel. 9 USC 16 – Appeals
9
Supreme Court of the United States. Coinbase, Inc. v. Bielski, No. 22-105
10
JAMS. Arbitration Schedule of Fees and Costs