Nexteer Automotive Corporation v. Mando America Corporation, 314 Mich. App. 391

Nexteer and Mando are competing steering manufacturers who had explored a joint operation and signed a nondisclosure agreement containing a Switzerland arbitration clause.
After talks ended, several high-level Nexteer employees resigned and joined Mando; Nexteer sued alleging trade-secret misappropriation and related claims.
The employees had non-disclosure and 12-month non-solicit employment agreements (no arbitration clauses); Nexteer sued on November 5, 2013.
On November 25, 2013, the parties jointly stipulated in a case-management order that an arbitration agreement “exists” but is “not applicable.”
Six months later Mando moved to compel arbitration of Nexteer’s remaining claims; Nexteer argued Mando had waived arbitration by stipulating it did not apply.
The trial court compelled arbitration, finding the stipulation did not amount to an express waiver and that Nexteer suffered no prejudice from the late demand; the Court of Appeals reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Mando’s stipulation that arbitration was “not applicable” was an express waiver of the right to arbitrate	The stipulation was an affirmative, knowing relinquishment of the arbitration right and thus an express waiver	The stipulation did not show knowing relinquishment; Mando may not have realized the right or intended to waive it	Held: The stipulation constituted an express waiver; trial court erred in treating it otherwise
If waiver were only implied, whether Nexteer was prejudiced by Mando’s late demand	Not necessary if express waiver; otherwise Nexteer would be prejudiced by time, cost, and discovery	Even if waived, Nexteer suffered no prejudice so arbitration should be compelled	Held: Court did not reach implied-waiver prejudice analysis because express waiver exists; prejudice showing unnecessary

Quality Prods & Concepts Co v Nagel Precision, Inc, 469 Mich 362 (Mich. 2003) (distinguishes express waiver from forfeiture; affirmative assent can constitute waiver)
Madison Dist Pub Sch v Myers, 247 Mich App 583 (Mich. Ct. App. 2001) (elements for proving implied waiver and prejudice burden)
Joba Constr Co v Monroe Co Drain Comm’r, 150 Mich App 173 (Mich. Ct. App. 1986) (parties may waive contractual rights including arbitration)
Whitley v Chrysler Corp, 373 Mich 469 (Mich. 1964) (stipulation language must plainly show intent to relinquish a right)
Amalgamated Transit Union v Southeastern Mich Transp Auth, 437 Mich 441 (Mich. 1991) (key words not required to demonstrate waiver)
Michelson v Voison, 254 Mich App 691 (Mich. Ct. App. 2003) (arbitration agreement existence/enforceability reviewed de novo)