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Sanderson Farms6/26/2003
, and, accordingly, the arbitrator, not the superior court, should have decided whether the agreement had been breached and what sanctions, if any, should follow.The superior court erred in deciding both questions. The superior court had authority here only to compel arbitration. It erred in refusing to do so.
Id. at 990 (citations omitted). (Note the similarity of the quoted authorities to those already cited regarding the FAA.) Because the parties had agreed to arbitrate all their disputes, including therefore those arising from the arbitration agreement, procedural questions of who pays what when, were reserved for the arbitrator to decide.
.Prejudicial delay, as this Court has stated, can waive the right to arbitrate. See Cox, 619 So. 2d at 913-14 . But see Gulf Guar., 304 F.3d at 484 ("mere delay falls far short of the waiver requirements"). Had Sanderson Farms simply refused to pay for arbitration, so that the proceedings were stalled indefinitely, that presumably would have at some point sufficed for a default. However, Gatlin went ahead and paid the disputed fee, apparently with the expectation that the arbitrator could ultimately decide that issue as well.
.As I have already noted, the plain language of the Agreement states: "Any controversy or claim arising between the parties . . ., including, but not limited to, disputes relating to this Agreement, or any breach of this Agreement, . . . will be settled by binding arbitration." (emphasis added). Merely showing a breach does not suffice to void the arbitration agreement. The standard instead is that enunciated above as constituting a default under 9 U.S.C. ยง 3. To hold that a dispute over who pays which fees, or some other procedural dispute, was inconsistent with the right to arbitrate and thus a default, would make nonsense of the U.S. Supreme Court's distinction between procedural and substantive issues. In Howsam, the party seeking arbitration was argued to have been doing so after the six-year time limit set by the arbitration agreement, yet the merits of that issue were held to be for the arbitrator, and the Court did not even consider the notion that by arguably breaching the arbitration agreement's terms, the party was in default. Howsam, 123 S. Ct. at 590 & 593. Analytically, that issue does not materially differ from the fee issue raised today by the Gatlins. If the arbitration agreement provides for a time limit, or for the parties to split some fees, or for the parties to wear full evening dress at the arbitration hearing, failures to comply with those rules may well result in the arbitrator's finding that a party has waived its right to arbitrate by failing to follow the rules-but that determination is left to the arbitrator, not to the courts. For courts to decide the merits of such issues would undo the fundamental premise of arbitration, which is that where the parties have agreed to arbitrate a dispute, the courts' attitude to the entirety of that dispute should be "hands off."
.For Gatlin to show that the alleged breach by Sanderson Farms rose to the level of a default, he would have to show that Sanderson Farms acted in a manner inconsistent with the very right to arbitrate which it sought to enforce. As the U.S. Supreme Court's decision in Howsam implies, any procedural error by Sanderson Farms made a procedural error by in not splitting the filing fee with Mr. Gatlin, is the kind of question that is itself left to the arbitrator to decide, not an act inconsistent with the right to arbitrate. The plurality fails to cite any authority in favor of determining otherwise.
." `There is a strong presumption against' a finding that a party waived its contractual right to arbit
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