N.M. Stat. § 44-7A-8 (2026)

(a) On motion of a person showing an agreement to arbitrate and alleging another
person's refusal to arbitrate pursuant to the agreement:

       (1)    if the refusing party does not appear or does not oppose the motion, the
court shall order the parties to arbitrate; and

       (2)   if the refusing party opposes the motion, the court shall proceed
summarily to decide the issue and order the parties to arbitrate unless it finds that there
is no enforceable agreement to arbitrate.
    (b) On motion of a person alleging that an arbitration proceeding has been initiated
or threatened but that there is no agreement to arbitrate, the court shall proceed
summarily to decide the issue. If the court finds that there is an enforceable agreement
to arbitrate, it shall order the parties to arbitrate.

  (c) If the court finds that there is no enforceable agreement, it may not pursuant to
Subsection (a) or (b) order the parties to arbitrate.

   (d) The court may not refuse to order arbitration because the claim subject to
arbitration lacks merit or grounds for the claim have not been established.

    (e) If a proceeding involving a claim referable to arbitration under an alleged
agreement to arbitrate is pending in court, a motion under this section must be made in
that court. Otherwise, a motion under this section may be made in any court as provided
in Section 28 [44-7A-28 NMSA 1978].

   (f) If a party makes a motion to the court to order arbitration, the court on just terms
shall stay any judicial proceeding that involves a claim alleged to be subject to the
arbitration until the court renders a final decision under this section.

   (g) If the court orders arbitration, the court on just terms shall stay any judicial
proceeding that involves a claim subject to the arbitration. If a claim subject to the
arbitration is severable, the court may limit the stay to that claim.

History: Laws 2001, ch. 227, § 8.

                                      ANNOTATIONS

Compiler's note. — Laws 2002, ch. 227, § 33 repealed the former Uniform Arbitration
Act, Sections 44-7-1 to 44-7-22 NMSA 1978, enacted by Laws 1971, ch. 168, §23. The
Uniform Arbitration Act compiled as 44-7A-1 to 44-7A-32 NMSA 1978 was enacted
effective July 1, 2001.

Requirement to arbitrate or otherwise waive an employee's individual statutory
rights must be clear and unmistakable. — Where plaintiff, an employee of the human
services department (HSD) and a member of a union, irrevocably elected to arbitrate an
appeal of a demotion that he received for testifying as a witness in a lawsuit against
HSD, but before any proceedings had been held, plaintiff filed a complaint in district
court under the Whistleblower Protection Act (WPA), 10-16C-1 NMSA 1978 to 10-16C-6
NMSA 1978, alleging that HSD violated his rights under the WPA when it retaliated
against him by disciplining him and demoting him for testifying that HSD's employees
had falsified documents, and where HSD moved to dismiss plaintiff's case and to
compel arbitration, arguing that pursuant to the union's collective bargaining agreement
(CBA), plaintiff's irrevocable election of arbitration obligated him to resolve his disputes
with HSD through arbitration, the district court denied HSD's motion to dismiss and
compel arbitration, reasoning that there are remedies under the WPA that are not
available under the CBA and plaintiff did not give those up when he elected to arbitrate,
the district court did not err in denying HSD's motion to dismiss and compel arbitration,
because any collective bargaining agreement requirement to arbitrate or otherwise
waive an employee's right to file a lawsuit involving an employee's individual statutory
rights must be clear and unmistakable, and in this case, the CBA did not include a clear
and unmistakable requirement that plaintiff arbitrate his claim under the WPA. Garcia v.
N.M. Human Servs. Dep't, 2026-NMSC-001, rev'g A-1-CA-39845, mem. op. (N.M. Ct.
App. June 13, 2022) (nonprecedential).

No right to compel arbitration. — Where defendants offered investment packages to
the public that consisted of interests in real property; plaintiff invested in three
properties; defendants created the third parties to act as the seller of the real property;
the purchase agreements contained arbitration clauses; plaintiff sued defendants for
violations of the New Mexico Securities Act of 1986, Section 58-13B-1 NMSA 1978 et
seq. [repealed]; plaintiff did not assert any claims against the third parties or allege any
interdependent or concerted misconduct between defendants and the third parties;
defendants filed complaints against the third parties for indemnity on the ground that the
third parties sold the real property interests that comprised the alleged securities that
plaintiff bought; defendants asserted the affirmative defense that plaintiff’s claims were
subject to the arbitration clauses in the purchase agreements; and the third parties filed
a motion to compel arbitration on all disputes, defendants did not have an independent
right to compel arbitration because the alleged violations of the Securities Act did not
hinge on the terms of the purchase agreements and the third parties could not assert
the arbitration defense because it could not be independently asserted by defendants.
Frederick v. Sun 1031, LLC, 2012-NMCA-118, 293 P.3d 934.

An arbitration agreement contrary to public policy will not be enforced. — Where
the state of New Mexico filed suit against ITT Technical Institute (ITT) claiming
violations of the New Mexico Unfair Practices Act (UPA) arising out of alleged
misrepresentations to students about ITT's nursing program and its financial process,
and where ITT filed a motion to compel arbitration in accordance with the arbitration
provision, and accompanying confidentiality clause, in the students' enrollment
agreements with ITT, which provided that any dispute be resolved by binding arbitration,
the district court properly declined to enforce the confidentiality clause and properly
denied ITT's motion to compel arbitration, because the state, under the UPA, has been
given broad statutory authority to investigate violations and enforce the provisions of the
UPA demonstrating New Mexico's fundamental public policy in favor of preventing
consumer harm and resolving consumer claims, and it would be contrary to public policy
to allow ITT to use the confidentiality clause with its students to shield itself from the
state's investigation and litigation authorized under the UPA. State ex rel. Balderas v.
ITT Educ. Servs., Inc., 2018-NMCA-044.

Arbitration agreement required. — The district court may not compel arbitration
absent an arbitration agreement. Alexander v. Calton & Assocs., Inc., 2005-NMCA-034,
137 N.M. 293, 110 P.3d 509.
Waiver. — A mere request for arbitration filed with the NASD cannot by itself be
sufficient to waive the right to contest arbitration and require proof of the existence of an
arbitration agreement in court. Alexander v. Calton & Assocs., Inc., 2005-NMCA-034,
137 N.M. 293, 110 P.3d 509.

Plaintiff did not breach the arbitration agreement or waive its right to arbitrate by
filing a complaint in district court. — Where plaintiff bank filed a debt collection
action in district court seeking to collect money that plaintiff claimed consumer owed on
her credit card account, and before consumer had notice that plaintiff filed its complaint,
consumer filed a demand for arbitration with the Colorado American arbitration
association (AAA), alleging a violation of the federal Fair Reporting Act and of a similar
Colorado statute of the Colorado Consumer Credit Code, and where, in the district court
case, consumer filed an answer to the complaint, together with nine counterclaims, and
filed a request with the AAA to withdraw the pending Colorado arbitration proceeding,
and where plaintiff filed in the district court a motion to compel arbitration, the district
court erred in denying plaintiff’s motion to compel arbitration on the grounds that plaintiff
waived its right to arbitrate, because plaintiff’s complaint, followed by the filing of a
timely motion to compel arbitration was not a breach of the arbitration agreement and
plaintiff did not waive its right to arbitrate by continuing to litigate in district court despite
consumer choosing to arbitrate by filing with the Colorado AAA, because the arbitration
agreement specifically stated that the filing of a lawsuit will not waive the party’s right to
arbitration. Citibank, N.A. v. Moyer, 2026-NMCA-041.

Valid arbitration defense does not divest the court of jurisdiction and is not
properly raised by a motion to dismiss for lack of subject matter jurisdiction. When
parties have agreed to arbitrate, however, a court should order arbitration. Daniels Ins.
Agency, Inc. v. Jordan, 1982-NMSC-148, 99 N.M. 297, 657 P.2d 624.

Role of court. — Under this section, it is the court's duty to order arbitration where
provision for it is clear. Where provision for arbitration is disputed, the court's function is
to determine whether there is an agreement to arbitrate and to order arbitration where
an agreement to arbitrate is found. Bernalillo Cnty. Med. Ctr. Employees' Ass'n Local
2370 v. Cancelosi, 1978-NMSC-086, 92 N.M. 307, 587 P.2d 960.

A moving party should have an opportunity to present evidence that a facially
one-sided provision is fair and reasonable before a court renders a decision
granting or denying a motion to compel arbitration. — In a consumer protection
class action lawsuit against defendant for violations of the Unfair Practices Act and for
unjust enrichment, where plaintiffs alleged that defendant imposed illegal charges when
selling new vehicles and failed to make timely payments on trade-in vehicles, and where
defendant responded to plaintiffs' complaint by filing a motion to compel arbitration,
citing an arbitration clause in the buyer's agreement that plaintiffs signed when
purchasing a vehicle from defendant, and where plaintiffs opposed arbitration on
grounds that the arbitration agreement was substantively unconscionable, and therefore
unenforceable, and where the district court determined that while the arbitration clause
was itself neutral on its face, the damages limitation and time-to-sue provisions were
unfairly and unreasonably one-sided and unconscionable, the district court erred in
denying the motion to compel, because the court should have allowed defendant, as the
drafting party, to present evidence that justifies the agreement is fair and reasonable,
such that enforcement of the agreement would not be substantively unconscionable.
Martinez v. Melloy Bros., Inc., 2026-NMCA-018, cert. denied.

Issue of whether an arbitration agreement was formed between the parties must
always be decided by a court. — The issue of whether a non-signatory can be bound
by an arbitration agreement is a matter of contract formation for the district court to
decide in the first instance, because the issue of whether an arbitration agreement was
formed between the parties must always be decided by a court, regardless of whether
the alleged agreement contained a delegation clause or whether one of the parties
specifically challenged such a clause. Accordingly, when faced with a motion to compel
arbitration, the court must first determine whether the parties to the litigation have
agreed to arbitrate. Szantho v. THI of N.M. at Sunset Villa, 2025-NMCA-006, cert.
granted.

In a wrongful death lawsuit where the personal representative of decedent's estate filed
claims against defendant, a long term care facility, claiming that the decedent died due
to a number of injuries he suffered during his stay at the long term care facility, and
where defendant filed a motion to compel arbitration, asserting that decedent's son had
signed the arbitration agreement both in his individual capacity and on behalf of
decedent and that the arbitration agreement could be enforced against decedent's
estate because the decedent was a third-party beneficiary of the agreement, the district
court did not err in determining that it was for the district court, rather than the arbitrator,
to decide in the first instance whether defendant and decedent agreed to arbitrate.
Szantho v. THI of N.M. at Sunset Villa, 2025-NMCA-006, cert. granted.

Third-party beneficiary doctrine did not provide a basis for binding plaintiff to the
arbitration agreement. — In a wrongful death lawsuit where the personal
representative of decedent's estate filed claims against defendant, a long term care
facility, claiming that the decedent died due to a number of injuries he suffered during
his stay at the long term care facility, and where defendant filed a motion to compel
arbitration, asserting that decedent's son had signed the arbitration agreement both in
his individual capacity and on behalf of decedent and that the arbitration agreement
could be enforced against decedent's estate because the decedent was a third-party
beneficiary of the agreement, the district court did not err in concluding that the
agreement was not enforceable in this case because there was no evidence that
decedent accepted the arbitration agreement after it was made. The general rule in
New Mexico is that nonparties to an arbitration agreement generally are not bound by
the agreement and are not subject to arbitration. Szantho v. THI of N.M. at Sunset Villa,
2025-NMCA-006, cert. granted.

Questions of contract formation must be decided by the court and may not be
delegated to the arbitrator. — Where mother was admitted to a residential nursing
home, and where, at the time of admission, her daughter signed both an admission
agreement and a separate arbitration agreement, and where, following mother’s death,
plaintiff filed a wrongful death claim, and in lieu of an answer, defendants filed a motion
to compel arbitration, the district court did not err in denying the motion, because
defendants failed to establish that defendants and mother had agreed to arbitrate their
claims, and the district court did not err in deciding the issue, because whether a non-
signatory can be bound by an arbitration agreement is a matter of contract formation for
the district court to decide in the first instance. Szantho v. Casa Mara of N.M., 2026-
NMCA-040, cert. filed.

Non-signatory to an arbitration agreement cannot be compelled to arbitrate based
on the third-party beneficiary doctrine. — Where mother was admitted to a
residential nursing home, and where, at the time of admission, her daughter signed both
an admission agreement and a separate arbitration agreement, and where, following
mother’s death, plaintiff filed a wrongful death claim, and in lieu of an answer,
defendants filed a motion to compel arbitration, claiming that mother can be compelled
to arbitrate because she was a third-party beneficiary, the district court did not err in
concluding that mother was not bound by the arbitration agreement, because the third-
party beneficiary doctrine does not, as a matter of law, permit a party to a contract to
enforce a contract against a non-signatory third-party beneficiary where the third-party
beneficiary has not otherwise sought to enforce the contract. Szantho v. Casa Mara of
N.M., 2026-NMCA-040, cert. filed.

Arbitrability to be decided by the district court unless parties agree otherwise. —
The general rule is that the arbitrability of a particular dispute is a threshold issue to be
decided by the district court unless there is clear and unmistakable evidence that the
parties decided otherwise under the terms of their arbitration agreement; a court shall
order the parties to arbitrate if it finds that there is an enforceable agreement to do so.
Juarez v. THI of New Mexico at Sunset Villa, 2022-NMCA-056.

A delegation clause challenge. — A challenge to a delegation clause will receive
judicial review when the delegation clause itself is specifically challenged on such
grounds as exist at law or in equity for the revocation of any contract. A sufficiently
specific challenge is one that discusses the language or the application and
enforcement of the delegation clause. Sanchez v. United Debt Counselors, LLC, 2024-
NMSC-026, rev'g A-1-CA-40164, mem. op. (N.M. Ct. App. Aug. 17, 2022)
(nonprecedential).

Plaintiff challenged the delegation clause with sufficient specificity. — Where
plaintiff filed a class action complaint against defendant for damages for alleged
violations of the New Mexico Unfair Practices Act (UPA), 57-12-1 to 57-12-26 NMSA
1978, and where defendant filed a motion to compel arbitration, citing an arbitration
clause in its contract with plaintiff, and where the district court granted defendant's
motion to compel arbitration, but declined to rule on whether the waiver of attorney's
fees renders the arbitration agreement unconscionable on the basis that the delegation
clause gives the arbitrator the authority to decide that issue or whether the delegation
clause itself is unconscionable, the district court erred in granting defendant's motion to
compel arbitration, because plaintiff challenged the delegation clause with sufficient
specificity, claiming that the delegation clause stripped her of an award of attorney's
fees and costs for successfully litigating threshold issues, in violation of the UPA, and
therefore it was for the district court in the first instance to determine whether the
delegation clause was valid and enforceable. Sanchez v. United Debt Counselors, LLC,
2024-NMSC-026, rev'g A-1-CA-40164, mem. op. (N.M. Ct. App. Aug. 17, 2022)
(nonprecedential).

Delegation clause presented clear and unmistakable evidence the parties
intended to have an arbitrator decide the threshold issue of arbitrability. — Where
plaintiff was admitted to a care facility for rehabilitation following knee replacement
surgery, and where, as a condition of her admission, signed an arbitration agreement,
and where, approximately seven months after her admission, plaintiff filed a complaint
against defendant alleging claims of medical negligence and negligent hiring, training,
supervision, and retention of employees, and where defendant moved to compel
arbitration, asserting that there was no dispute that plaintiff signed the agreement for
dispute resolution, that defendant was entitled to enforce the agreement, that the
agreement was a valid, enforceable agreement supported by consideration, and that the
delegation clause clearly required any questions about arbitrability be submitted to the
arbitrator, the district court erred in denying defendant's motion to compel arbitration,
because there was a valid contract, supported by consideration, to arbitrate between
the parties, and the delegation clause clearly and unmistakably delegated questions of
arbitrability to the arbitrator. Juarez v. THI of New Mexico at Sunset Villa, 2022-NMCA-
056.

Standard for granting motion. — As with a summary judgment motion, a motion to
compel arbitration may only be granted as a matter of law when there is no genuine
issue of material fact as to the existence of an agreement; only then should the court
decide the existence of the agreement as a matter of law. DeArmond v. Halliburton
Energy Servs., Inc., 2003-NMCA-148, 134 N.M. 630, 81 P.3d 573, cert. denied, 2003-
NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Motion to compel arbitration denied where contract contained conflicting
arbitration provisions. — In a class action complaint, where plaintiff alleged that
defendant violated New Mexico consumer protection law by charging more than the
advertised price for a vehicle that plaintiff purchased from defendant, and where
defendant moved to compel arbitration, arguing that although the parties entered into
two contracts with contradictory arbitration provisions, the finance agreement was an
integrated contract that superseded and replaced the buyer's agreement, resolving any
conflict between the arbitration provisions in the two contracts, the district court did not
err in denying defendant's motion to compel arbitration, because the merger clause
relied on by defendant did not express the parties' intent that the finance agreement
supersede or replace the buyer's agreement or the buyer's agreement arbitration
provision; there was therefore no meeting of the minds between the parties as to
arbitration, and no enforceable agreement to arbitrate. Martinez v. Gales Chevrolet Co.,
2024-NMCA-051, cert. denied.
Arbitration agreement could not be enforced where Federal Arbitration Act
exemption applied. — Where defendant employed plaintiff as a commercial truck
driver, and where, during the hiring process, plaintiff signed an arbitration agreement
agreeing to arbitrate claims for wages, benefits or other compensation due and
agreeing to waive the right to bring a class action, and where, a year later, plaintiff filed
a class-action complaint in the district court against defendant for violations of the New
Mexico Minimum Wage Act, 50-4-19 to 50-4-30 NMSA 1978, and where defendant filed
a motion to dismiss or stay and compel arbitration, the district court did not err in
denying defendant's motion, because the Federal Arbitration Act (FAA), 9 U.S.C. § 1,
exempts certain contracts from mandatory enforcement, including contracts of
employment of transportation workers engaged in interstate commerce, and the record
in this case included evidence that the parties intended for multiple documents,
including the arbitration agreement, to form a contract of employment and plaintiff
established that he belonged to a class of transportation workers engaged in interstate
commerce. The arbitration agreement, therefore, cannot be enforced under the FAA.
Bankert v. 10 Roads Express, LLC, 2025-NMCA-014.

Equitable estoppel is applicable. — A nonparty to a contract may be equitably
estopped from refusing to comply with a reasonable arbitration provision contained in
the contract where the nonparty attempts to enforce some aspect of the contract.
Damon v. StrucSure Home Warranty, LLC, 2014-NMCA-116.

Nonparties to an arbitration agreement. — Plaintiffs, as subsequent purchasers of a
home and nonparties to a home warranty agreement, are bound by an arbitration
provision contained in the warranty agreement if they directly seek the benefits of the
warranty agreement. Damon v. StrucSure Home Warranty, LLC, 2014-NMCA-116.

Non-signatory to an arbitration agreement compelling arbitration. — Where
plaintiff, a subcontractor that provided roofing labor, materials, and equipment for an
apartment construction project, brought an action against the insurance company that
issued a payment bond to cover the contractor's obligation to pay for labor, materials,
and equipment, in an attempt to collect on a payment bond that provided the right to
bring a lawsuit in the event of nonpayment by the contractor, and where the insurance
company moved to compel plaintiff to arbitrate its claim pursuant to the arbitration
clause in the contract between plaintiff and the contractor, and where plaintiff claimed
that the insurance company, as a nonparty to the subcontract, is not entitled to enforce
the arbitration agreement, the court held that plaintiff is equitably estopped from
disavowing the arbitration agreement, because when a signatory to an arbitration
agreement must rely on the terms of the agreement in making a claim against a non-
signatory, equitable estoppel may apply to allow a non-signatory to compel arbitration.
Rock Roofing, LLC v. Travelers Cas. & Sur. Co. of America, 413 F. Supp. 3d 1122 (D.
N.M. 2019).

Uninsured motorist claim. — New Mexico law does not require arbitration of an
uninsured motorist claim upon the unilateral demand of either the insurer or the insured
where the insurance policy states that disputes regarding whether the insured is entitled
to receive payment under the policy, or the amount of payment due, will be submitted to
arbitration only if both the insurer and insured consent. McMillian v. Allstate Indem. Co.,
2004-NMSC-002, 135 N.M. 17, 84 P.3d 65.

No judicial power to compel consolidated arbitration. — Absent express statutory
authorization or agreement of all concerned parties, district court had no power to
compel consolidated arbitration. Pueblo of Laguna v. Cillessen & Son, 1984-NMSC-060,
101 N.M. 341, 682 P.2d 197.

When trial court determines force of disputed contract. — When a petition is filed to
compel arbitration pursuant to a contract's arbitration clause and the responding party
denies the existence or validity of the contract, the trial court must determine whether
the contract is still in force to compel the requested arbitration. Gonzales v. United S.W.
Nat'l Bank, 1979-NMSC-086, 93 N.M. 522, 602 P.2d 619.

Right to arbitration not waived. — Where between the date a complaint was filed and
the date a motion for arbitration was filed, the only pleadings filed were: (1) a complaint;
(2) a motion to dismiss; (3) a first amended complaint; and (4) a motion requesting the
trial court to submit the issues to arbitration, the case was not at issue and the right to
arbitration had not been waived. Bernalillo Cnty. Med. Ctr. Employees' Ass'n Local 2370
v. Cancelosi, 1978-NMSC-086, 92 N.M. 307, 587 P.2d 960.

Right to arbitration not waived by mere filing of complaint. — When the demand for
arbitration follows initiation of proceedings in court, going to the merits of the dispute, a
question of waiver is sometimes raised, but the mere filing of a complaint does not
constitute a waiver of a right to arbitration. Bernalillo Cnty. Med. Ctr. Employees' Ass'n
Local 2370 v. Cancelosi, 1978-NMSC-086, 92 N.M. 307, 587 P.2d 960.

Unlicensed business cannot compel arbitration. — Texas corporations unauthorized
to do business in New Mexico were unable to compel two dentists to arbitrate a dispute
arising from an alleged breach of architectural and construction contracts for the
construction of dental offices because a suit to compel arbitration is essentially a suit for
specific performance and the corporations, not licensed to do business in New Mexico,
cannot perform. Shaw v. Kuhnel & Assocs., 1985-NMSC-008, 102 N.M. 607, 698 P.2d
880.

Fraud in the inducement not issue for arbitrator. — It is for a court to determine
issues of fraud in the inducement of a contract, not an arbitrator; if no fraud is found, the
remaining issues can proceed to arbitration. Shaw v. Kuhnel & Assocs., 1985-NMSC-
008, 102 N.M. 607, 698 P.2d 880.

Arbitration agreement was not illusory or unconscionable. — Where employee
brought an action against employer, alleging sex and race discrimination under Title VII
of the Civil Rights Act of 1964 and the New Mexico Human Rights Act, negligent hiring
and supervision, and wrongful discharge, and where employer moved to compel
arbitration claiming that the parties had a binding arbitration agreement, and where
employee claimed that the arbitration agreement was unenforceable because it was
illusory and unconscionable, the court granted the motion to compel arbitration because
the employee's claims were within the scope of the arbitration agreement, the arbitration
agreement was not illusory because both parties provided adequate consideration, and
the arbitration agreement was not unconscionable because employee had the
opportunity and capacity to understand the agreement, and the arbitration agreement's
terms were not patently unfair. Laurich v. Red Lobster Restaurants, LLC, 295
F.Supp.3d 1186 (D. N.M. 2017).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 4 Am. Jur. 2d Alternative Dispute
Resolution § 126 et seq.

Disqualification of arbitrator by court or stay of arbitration proceedings prior to award, on
ground of interest, bias, prejudice, collusion or fraud of arbitrators, 65 A.L.R.2d 755.

Statute of limitations as bar to arbitration under agreement, 94 A.L.R.3d 533.

Defendant's participation in action as waiver of right to arbitration of dispute involved
therein, 98 A.L.R.3d 767.

Which statute of limitations applies to efforts to compel arbitration of a dispute, 77
A.L.R.4th 1071.

What statute of limitations applies to action to compel arbitration pursuant to § 301 of
Labor Management Relations Act (29 USCS § 185), 96 A.L.R. Fed. 378.

6 C.J.S. Arbitration §§ 30 to 32, 39, 45, 46.