In City & County of Denver v. District Court, 939 P.2d 1353 (Colo. 1997), the supreme court set forth the following six-factor test a court should apply to determine whether a party has waived the right to invoke alternative dispute resolution: (1) whether the party has actually participated in the lawsuit or has taken other action inconsistent with his rights; (2) whether litigation has substantially progressed by the time the intention to arbitrate was communicated by the party moving to dismiss; (3) whether there has been a long delay in seeking a stay and whether the defendant filed counterclaims without asking for a stay; (4) whether a request to compel arbitration was initiated close to trial; (5) whether the party seeking arbitration has taken unfair advantage of discovery proceedings which would not have been available in arbitration; (6) whether the other party was affected, misled, or prejudiced by the delay.