A party does not waive its right to arbitrate through participation in pretrial preparations if it consistently, affirmatively, and promptly advances its arbitration rights in all answers and discovery responses, according to the Mississippi Court of Appeals.

In Virginia College, LLC v. Moore, No. 2006-CA-02064-COA, 2008 WL 305737 (Miss. Ct. App. Feb. 5, 2008), former student Moore sued Virginia College for "educational malpractice." Virginia College sought to compel arbitration of Moore's claim under an arbitration agreement included in an enrollment contract.

The trial court denied the motion to compel, holding that Virginia College had waived its right to arbitrate through its active participation in the litigation process. The trial court found Virginia College's time extension request, answer, and responses to discovery requests and subpoenas constituted active participation, and therefore waived its right to arbitrate.

The Court observed that Virginia College "consistently advanced its arbitration rights" throughout its minimal participation in the pretrial litigation process. For example, it had asserted the arbitration agreement as an affirmative defense in its answer, filed its motion to compel concurrently with its answer, and responded to discovery requests, in part, with a statement specifically disclaiming its responses as a waiver of the right to arbitrate. To the Court, this active assertion, coupled with its prompt motion to compel, preserved Virginia College's right to arbitrate.