Wisconsin Statutes
Wis. Stat. § 788.02 (2026)
Stay of action to permit arbitration
✓ current as of July 2026
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788.02788.02 Stay of action to permit arbitration. If any suit or proceeding be brought upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.
788.02 AnnotationCommencing litigation did not waive a contractual right to arbitration. J.J. Andrews, Inc. v. Midland, 164 Wis. 2d 215, 474 N.W.2d 756 (Ct. App. 1991).
788.02 AnnotationThe right to arbitrate may be waived. Conduct that allows an action to proceed to a point where the purpose of arbitration is frustrated estops a party from claiming a right to arbitration. Meyer v. Classified Insurance Corp. of Wisconsin, 179 Wis. 2d 386, 507 N.W.2d 149 (Ct. App. 1993).
788.02 AnnotationIn determining whether a dispute is arbitrable, a court’s function is limited to a determination of whether: 1) there is a construction of the arbitration clause that would cover the grievance on its face; and 2) any other provision of the contract specifically excludes it. Mortimore v. Merge Technologies Inc., 2012 WI App 109, 344 Wis. 2d 459, 824 N.W.2d 155, 11-1039.
788.02 AnnotationIn determining a court’s function in arbitration disputes, Wisconsin has adopted the following general teachings: 1) arbitration is a matter of contract, and, as such, no party can be compelled to arbitrate a matter that the party has not agreed to submit to arbitration; 2) the question of arbitrability is one for judicial determination unless the parties expressly agree otherwise; 3) in determining whether the parties have agreed to submit a matter for arbitration, the court does not consider the merits of the underlying claim; 4) contracts that contain arbitration clauses carry a strong presumption of arbitration; therefore, doubts are resolved in favor of arbitration coverage. Mortimore v. Merge Technologies Inc., 2012 WI App 109, 344 Wis. 2d 459, 824 N.W.2d 155, 11-1039.
788.02 AnnotationParties may contract broadly and agree to arbitrate even the issue of arbitrability. However, arbitrators cannot determine whether they have the authority to decide arbitrability unless the parties give arbitrators such authority. The evidence of this grant of authority must be clear and unmistakable; otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator. Midwest Neurosciences Associates, LLC v. Great Lakes Neurosurgical Associates, LLC, 2018 WI 112, 384 Wis. 2d 669, 920 N.W.2d 767, 16-0601.
788.02 AnnotationA court should order arbitration only if the court is satisfied that neither the formation of the parties’ arbitration agreement nor—absent a valid provision specifically committing such disputes to an arbitrator—its enforceability or applicability to the dispute is in issue. In answering both who determines arbitrability and what is subject to arbitration, a court applies state-law contract principles and this chapter. Accordingly, a court may invalidate an arbitration agreement based on generally applicable contract defenses like fraud or unconscionability, but not on legal rules that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue. Midwest Neurosciences Associates, LLC v. Great Lakes Neurosurgical Associates, LLC, 2018 WI 112, 384 Wis. 2d 669, 920 N.W.2d 767, 16-0601.
788.02 AnnotationThe procedure under this section is somewhat truncated in comparison to s. 788.03, but the circuit court’s responsibility is essentially the same. Both this section and s. 788.03 require the circuit court to do nothing more than determine whether the parties must arbitrate their dispute and then ensure that they do. L.G. v. Aurora Residential Alternatives, Inc., 2019 WI 79, 387 Wis. 2d 724, 929 N.W.2d 590, 18-0656.
788.02 AnnotationAn application to stay pursuant to this section is a special proceeding within the meaning of s. 808.03 (1), and a circuit court order denying a request to compel arbitration and stay a pending lawsuit is final for the purposes of appeal. L.G. v. Aurora Residential Alternatives, Inc., 2019 WI 79, 387 Wis. 2d 724, 929 N.W.2d 590, 18-0656.
788.02 AnnotationUnless an arbitration agreement clearly and unmistakably provides otherwise, whether a party has waived the right to arbitrate through its litigation conduct is an issue for a court, not an arbitrator, to decide. In other words, there is a presumption that this issue will be resolved in court. U.S. Bank National Ass’n v. Klein, 2024 WI App 7, 410 Wis. 2d 598, 3 N.W.3d 726, 22-0920.
Notes of Decisions
Cited in 29
cases (9 in the last 5 years), 1991–2026 · leading case: L. G., by Chippewa Fam. Servs., Inc. v. Aurora Residential Alternatives, Inc., 929 N.W.2d 590 (Wis. 2019).
L. G., by Chippewa Fam. Servs., Inc. v. Aurora Residential Alternatives, Inc., 929 N.W.2d 590 (Wis. 2019). “The procedure under Wis. Stat. § 788.02 is somewhat truncated in comparison to Wis.”
J.J. Andrews, Inc. v. Midland, 474 N.W.2d 756 (Wis. Ct. App. 1991). “(Andrews) waived arbitration when it *219 commenced this lawsuit without requesting arbitration, undertook discovery and then moved to stay judicial action to permit arbitration, pursuant to sec. 788.02, Stats. Second, whether the trial court erred in not conducting a hearing,…”
Kimberly Area Sch. Dist. v. Zdanovec, 586 N.W.2d 41 (Wis. Ct. App. 1998). “Defendants Susan Zdanovec and the Kimberly Education Association (Zdandovec) appeal an order denying their motion for judgment on the pleadings and motion for an order directing the parties to grievance and arbitration proceedings pursuant to § 788.02, Stats. Additionally, they…”
Meyer v. Classified Ins. Corp. of Wisconsin, 507 N.W.2d 149 (Wis. Ct. App. 1993). “The issues on appeal are: (1) whether Classified had an absolute right under sec. 788.02, Stats., to a stay of judicial proceedings in order to arbitrate the Meyers' underinsured motorist claim, and (2) whether the trial court erred in deciding that Classified waived its…”
Cirilli v. Country Ins. & Fin. Servs., 2009 WI App 167 (Wis. Ct. App. 2009). “On September 28, 2007, Country filed a motion to compel arbitration (or in the alternative, to dismiss the complaint) pursuant to Wis. Stat. § 788.02 (2007-08). 1 Country requested the action be stayed and arbitration compelled in accordance with the terms of the Cirilli…”
Midwest Neurosciences Assocs., LLC v. Great Lakes Neurosurgical Assocs., LLC, 920 N.W.2d 767 (Wis. 2018). “" Wis. Stat. § 788.02 . Before the court can order arbitration, the court must be "satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue.”
Leavitt v. Beverly Enter., Inc., 2010 WI 71 (Wis. 2010). “Having determined that the arbitration agreement was valid and enforceable, the court granted Beverly Enterprises' motion to stay proceedings and compel arbitration pursuant to Wis. Stat. § 788.02 . [6] ¶ 10 Parker filed a petition for leave to appeal.”
Kirk v. Credit Acceptance Corp., 2013 WI App 32 (Wis. Ct. App. 2013). “Wis. Stat. § 788.02 . If any suit or proceeding be brought upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to…”
Payday Loan Store of Wisconsin Inc. v. Krueger, 2013 WI App 25 (Wis. Ct. App. 2013). “03 in conjunction with Wis. Stat. § 788.02 , which permits a party to move "the court in which such suit is pending" for a stay of litigation to permit arbitration.”
Richards v. First Union Sec., Inc., 2006 WI 55 (Wis. 2006). “The motion asked that the court dismiss Richards' claims, or alternatively, First Union asked the court to issue a stay pending arbitration pursuant to Wis. Stat. § 788.02 . First Union included, in support of its motion, affidavits from the branch manager of its Brookfield…”
Madison Beauty Supply, Ltd. v. Helene Curtis, Inc., 481 N.W.2d 644 (Wis. Ct. App. 1992). “The determination of that question is for the circuit court in the first instance, under sec. 788.02, Stats., 3 subject, of course, to appellate review.”
Lynch v. Am. Fam. Mut. Ins., 473 N.W.2d 515 (Wis. Ct. App. 1991). “" Section 788.02, Stats. The mere presence of an arbitration clause in an insurance policy, however, will not prevent the insured from suing the company, although the company may — if it desires — obtain the statutory stay.”
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