A question courts can be faced with in ruling on a motion to compel arbitration is whether in fact the parties have agreed to arbitrate the dispute. The lower federal courts have utilized a variety of inconsistent practices in making this determination that have occasionally led to consideration by the court of the merits of the underlying case before the question of whether arbitration should be compelled has been resolved.
Deciding an issue of first impression, the U.S. Court of Appeals for the District of Columbia Circuit recently articulated a clear rule that under the Federal Arbitration Act (FAA), a mini-trial is first required to settle the issue where a genuine dispute of material facts exists as to whether the parties agreed to arbitrate.
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