City & County of Denver v. District Court
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.