This section deals with the situation in which a civil action has been commenced, and the defendant asserts the dispute must be arbitrated.

§ 9.3.1—Motion By Defendant In Pending Civil Action To Stay The Civil Action And Compel Arbitration Of The Claims


The role of the court under the FAA, and probably to the same effect under the Colorado arbitration statutes, was defined by the Eighth Circuit Court of Appeals in Pro Tech Industries, Inc. v. URS Corp.1

By its terms, the FAA "leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed." A court's role under the FAA is therefore limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute.

Thus, prior to the arbitration's commencing, two issues may be presented: whether there is a valid and enforceable agreement to arbitrate, and, if so, whether the particular dispute is within the scope of that agreement. However, those issues encompass several sub-issues, discussed in earlier chapters. Usually, these issues are raised before a court in conjunction with a motion or response to a motion to a court to stay or compel arbitration. Sometimes the issues are simply submitted to the arbitrator as preliminary issues for his or her determination, with or without express agreement in the arbitration agreement as to whether the arbitrator has jurisdiction or power to determine them.

The Colorado federal district court defined the procedures and burden of proof for a motion to compel arbitration.2

• The motion is governed by a standard similar to that governing motions for summary judgment: evidence sufficient to demonstrate an enforceable arbitration agreement.
• If the movant shows the foregoing, the burden shifts to the opponent to raise a genuine issue of material fact as to the making of the agreement, evidence comparable to that identified in F.R.C.P. 56.
◦ The facts must be supported by reference to an affidavit, deposition transcript, or specific exhibit.
• If a genuine issue of material fact is shown, then a trial on the existence of the arbitration agreement is held.
• A jury trial may be held on the issues of fact, if requested.

As to the role of a jury, see § 9.7.7.


In Cabs, Inc. v. Delivery Drivers, Warehousemen & Helpers Local Union 435,3 the drivers union moved the court to compel the cab company to arbitrate certain contract issues, pursuant to an arbitration provision in the collective bargaining agreement. The cab company asserted that the issue — gasoline prices paid by drivers — was not within the scope of the arbitration agreement.

The Colorado Court of Appeals denied the motion to compel, setting forth the following principles:

• Arbitration is favored as a method of resolving disputes.
• The district court is empowered to stay arbitration proceedings upon a showing that there is no agreement to arbitrate.
• Where it is apparent from the language of the arbitration

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