Trap of the Week: Inadvertent waiver of arbitrability by litigation

Thursday, Jan. 19, 2023
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From time to time, eJournal features excerpts from the expanded Seventh Edition of the Massachusetts Bar Association’s award-winning malpractice prevention handbook, Traps for the Unwary, which looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. This Trap of the Week looks at looks at inadvertent waiver of arbitrability by litigation.

Inadvertent waiver of arbitrability by litigation

Contractual agreements to arbitrate prospective disputes are generally enforceable in state and federal courts. 9 USCS sec. 2, Federal Arbitration Act, for matters involving “interstate commerce,” and M.G.L. c. 251, sec. 1, the Massachusetts Arbitration Act. But claims under M.G.L. c. 93A are not required to be arbitrated unless they involve federal commerce and thus are governed by the federal statute. McInnes v. LPL Financial, LLC, 466 Mass. 256, 994 N.E.2d 790 (2013). Strong public policy favors arbitration, but a defendant may inadvertently waive its right to compel arbitration if it participates in litigation of a dispute. Kettle Black of MA, LLC v. Commonwealth Pain Management Connection, LLC, 101 Mass. App. Ct. 109, 189 N.E.3d 1257 (2022) (party waived arbitration by participating in litigation in court for two years). 

Traps For the Unwary editors James E. Harvey Jr. and John F. Brosnan from O’Malley, Harvey and Brosnan LLC encourage alert readers to send them suggestions for “traps” to include in future editions of the eJournal — and to help MBA members avoid pitfalls.


The expanded Seventh Edition of Traps for the Unwary was made available to MBA members as a free e-publication during the MBA’s 2021-22 association year. From dangers that arise in uncommon circumstances to hard-to-see risks that are masked by a complex matrix of laws and regulations, Traps for the Unwary is an indispensable reference tool that benefits both lawyer and client. The original Traps for the Unwary, published in 1988, earned a first place Award of Achievement from the American Bar Association for service to the bar.

MBA members can access and download their e-copy from their MBA profile. (See detailed instructions at