Originally from Dispute Resolution Journal

CONSTRUCTION — NEVADA LIEN FORECLOSURE — ARBITRATION NOT WAIVED — NRS 38.045 COMPELLING ARBITRATION — BURDEN OF GOING FORWARD

The burden of initiating arbitration rests with the party seeking relief. NRS 38.046 provides that an appeal may be taken from an order denying an application to compel arbitration made thereunder. Therefore, a Rule 54 (b) determination was not necessary in the instant consolidated appeals because the arbitration statute expressly authorizes an appeal. After disposing of this threshold issue the court determined that "absent express language in the contract placing the initial burden on either party, that responsibility properly rests with the party seeking relief. Mamlin v. Susan Thomas, Incorporated, 490 S.W.2d 634 (Tex. 1973), Nordenstrom v. Swedberg, 143 N.W.2d 848, 857 (N.D. 1966); Klein Coat Corp. v. Peretz, 4 Misc.2d 341, 153 N.Y.S.2d 92, 97 (S. Ct. 1956)." Therefore, the court rejected the theory that the Appellant had waived its right to arbitrate by failing to file written notice of its demand therefore "within a reasonable time." The court found that initiation of court action where the parties had agreed to arbitrate their disputes constituted a refusal to arbitrate within the intendment of NRS 38.045(1). Further the court found no conduct on the part of appellant which spoke clearly of the intention to waive arbitration. "The passing of time after the disputes arose, without more, does not point to a waiver of the arbitration provisions. . . . " In overruling the trial court's reasoning that arbitration is not suited to a case where a lienor-contractor enjoys the statutory remedy provided by the mechanics' lien law, the court said, "We find no authority holding that arbitration is inappropriate when the parties to a construction contract have agreed to that method of settlement. Neither the mechanics' lien law nor the arbitration act discloses a legislative intention to preclude the voluntary arbitration of disputes arising out of a construction contract. The contractors before us have not attempted to demonstrate how or why they would be prejudiced by having the rights settled by the arbitration process to which they have agreed." The court, in footnote 5, mentions Miller Act cases and the treatise "Compulsory Arbitration and Eights under the Miller Act, Mechanics' Lien Laws, and State Public Improvement Bonds."

Vol. IX, Number 8, The Forum, 195 (April 1969). Lane-Tahoe, Inc. v. Kindred Construction Company, 536 P.2d 491 (Nev. 1975).