Wis. Stat. » CHAPTER 788 — ARBITRATION
Wisconsin Statutes

Wis. Stat. § 788.03 (2026)

Court order to arbitrate; procedure

✓ current as of July 2026
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788.03788.03 Court order to arbitrate; procedure. The party aggrieved by the alleged failure, neglect or refusal of another to perform under a written agreement for arbitration may petition any court of record having jurisdiction of the parties or of the property for an order directing that such arbitration proceed as provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made as provided by law for the service of a summons. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement or the failure, neglect or refusal to perform the same is in issue, the court shall proceed summarily to the trial thereof. If no jury trial is demanded, the court shall hear and determine such issue. Where such an issue is raised, either party may, on or before the return day of the notice of application, demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue to a jury summoned and selected under s. 756.06. If the jury finds that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury finds that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.
788.03 HistoryHistory: Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1977 c. 187 s. 135; 1979 c. 32 s. 64; Stats. 1979 s. 788.03; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997).
788.03 AnnotationAn insured who acceded to the insurer’s refusal to arbitrate the insured’s uninsured motorist claim until after the insured’s passengers’ claims were litigated was not an “aggrieved party” within the meaning of this section. Worthington v. Farmers Insurance Exchange, 77 Wis. 2d 508, 253 N.W.2d 76 (1977).
788.03 AnnotationIn the absence of a reservation of rights, “partial participation” in the arbitration process may estop a party from challenging an arbitration agreement. Pilgrim Investment Corp. v. Reed, 156 Wis. 2d 677, 457 N.W.2d 544 (Ct. App. 1990).
788.03 AnnotationThis section is only available when an underlying lawsuit has not yet been filed. When a lawsuit has been commenced, a party may not use the special procedure outlined in this section to compel arbitration. The party may still seek an order to arbitrate, but it must do so in the court in which the underlying lawsuit is pending, not by initiating a separate action. Payday Loan Store of Wisconsin Inc. v. Krueger, 2013 WI App 25, 346 Wis. 2d 237, 828 N.W.2d 587, 12-0751.
788.03 AnnotationTimeliness and estoppel defenses against arbitration are to be determined in the arbitration proceedings, not by a court in a proceeding under this section to compel arbitration. This conclusion in this case was based on Wisconsin’s public policy favoring arbitration, the arbitration agreement in this case, the Realtors Association’s arbitration procedures, the limited role of courts in actions to compel arbitration under this section, and relevant case law. First Weber Group, Inc. v. Synergy Real Estate Group, LLC, 2015 WI 34, 361 Wis. 2d 496, 860 N.W.2d 498, 13-1205.
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788.03 AnnotationThe legislature has determined that the courts have a limited role in the context of arbitration. In an action to compel arbitration under this section, the issues are limited to the making of the arbitration agreement or the failure, neglect, or refusal to perform under the agreement. When determining whether a dispute is arbitrable, a court’s function is limited to a determination of whether there is a construction of the arbitration clause that would cover the grievance on its face and whether any other provision of the contract specifically excludes it. First Weber Group, Inc. v. Synergy Real Estate Group, LLC, 2015 WI 34, 361 Wis. 2d 496, 860 N.W.2d 498, 13-1205.
788.03 AnnotationThe procedure under s. 788.02 is somewhat truncated in comparison to this section, but the circuit court’s responsibility is essentially the same. Both this section and s. 788.02 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.
788.03 AnnotationA court itself may consider a specific challenge to a delegation provision within an arbitration agreement. First, a party must specifically challenge the delegation provision in its pleadings. Second, a party may use the arguments challenging the arbitration agreement as a whole to challenge the delegation provision as long as those arguments are tailored to the delegation provision. Third, it is insufficient for a party to simply state that it is challenging the delegation provision for the same reasons it is challenging the arbitration agreement as a whole without elaborating on the basis for the challenge to the delegation provision. If such a challenge is successful and a court finds the provision to be invalid or unenforceable, the court may then consider a challenge to the entire arbitration agreement, given that an invalid or unenforceable delegation provision would not delegate challenges to the entire arbitration agreement to the arbitrator. OptumRx, Inc. v. Marinette-Menominee Prescription Center LTD, 2025 WI App 70, 419 Wis. 2d 104, 30 N.W.3d 409, 23-1475.
Notes of Decisions
Cited in 29 cases (6 in the last 5 years), 1990–2026 · leading case: First Weber Grp., Inc. v. Synergy Real Est. Grp., LLC, 2015 WI 34 (Wis. 2015).
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First Weber Grp., Inc. v. Synergy Real Est. Grp., LLC, 2015 WI 34 (Wis. 2015). · cites it 25× “We conclude that under the arbitration agreement, Graham's timeliness and estoppel defenses against arbitration are to be determined in the arbitration proceedings, not by a court in a proceeding *503 under Wis. Stat. § 788.03 4 to compel arbitration.”
Midwest Neurosciences Assocs., LLC v. Great Lakes Neurosurgical Assocs., LLC, 920 N.W.2d 767 (Wis. 2018). · cites it 6× “Wis. Stat. § 788.03 . ¶49 The court may, after arbitration, vacate an arbitrator's award or order a rehearing by the arbitrator, pursuant to Wis.”
L. G., by Chippewa Fam. Servs., Inc. v. Aurora Residential Alternatives, Inc., 929 N.W.2d 590 (Wis. 2019). · cites it 14× “" Wis. Stat. § 788.03 . ¶14 Upon the filing of such a petition, the Arbitration Act limits the circuit court's role to determining *734 the existence of an enforceable arbitration agreement and any failure to comply with it.”
Payday Loan Store of Wisconsin Inc. v. Krueger, 2013 WI App 25 (Wis. Ct. App. 2013). · cites it 23× “, seeking to compel arbitration of their claims pursuant to Wis. Stat. § 788.03 . Each petition was filed in a separate branch of the Brown County Circuit Court and initiated a separate lawsuit, distinct from the underlying lawsuit against PLS.”
Wisconsin Auto Title Loans, Inc. v. Jones, 2006 WI 53 (Wis. 2006). · cites it 4× “Wisconsin Auto Title Loans did not answer the counterclaims but moved to compel the borrower to arbitrate the counterclaims in accordance with the terms of the parties' agreement and pursuant to the Federal Arbitration Act and Wis. Stat. § 788.03 . Wisconsin Auto Title Loans…”
J.J. Andrews, Inc. v. Midland, 474 N.W.2d 756 (Wis. Ct. App. 1991). · cites it 9× “Second, whether the trial court erred in not conducting a hearing, pursuant to sec. 788.03, Stats., to examine the validity of the contract containing the arbitration clause despite the Midlands' counterclaim of fraud and misrepresentation.”
Madison Teachers, Inc. v. Wisconsin Educ. Ass'n Council, 2005 WI App 180 (Wis. Ct. App. 2005). · cites it 8× “§ 788.03 (2003-04) [1] seeking to compel the Wisconsin Education Association Council ("State Council") to arbitrate a dispute arising from a 1978 Agreement, which governed the relationship between the two organizations and the National Education Association ("National…”
Abraham v. Gen. Cas. Co., 576 N.W.2d 46 (Wis. 1998). · cites it 4× “In this action, Abraham sought a judgment declaring that General Casualty's policy provided underinsured motorist coverage to Abraham, and an order requiring General Casualty to arbitrate in good faith pursuant to Wis. Stat. § 788.03 . General Casualty moved to dismiss on…”
Riley v. Extendicare Health Facilities, Inc., 2013 WI App 9 (Wis. Ct. App. 2012). · cites it 3× “Thus, although our review involves only a consideration of the Wisconsin statutes on arbitration, nonetheless, we may also consider federal court interpretations of the federal statutes on arbitration as an aid in the resolution of this case.”
Pilgrim Inv. Corp. v. Reed, 457 N.W.2d 544 (Wis. Ct. App. 1990). · cites it 5× “Pilgrim responded by filing this action, a petition pursuant to sec. 788.03, Stats., on December 7, 1988.”
First Weber Grp., Inc. v. Synergy Real Est. Grp., LLC, 2014 WI App 41 (Wis. Ct. App. 2014). · cites it 14× “On November 2, 2012, First Weber filed in the circuit court the petition at issue in this appeal, to compel arbitration pursuant to Wis. Stat. § 788.03 (2011-12). 6 This action was assigned to the Honorable Juan B.”
Employers Ins. of Wausau v. Jackson, 527 N.W.2d 681 (Wis. 1995). · cites it 9× “Although it was under no statutory duty to name Mitchell as Lloyd's arbitrator, by doing so, the circuit court gave deference to the arbitration agreement pursuant to sec. 788.03, Stats. As the circuit court recognized, the parties had previously signed an agreement whereby…”
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