Can Parties Be Forced to Submit to Arbitration If They Have Not Agreed to Do So ?

In Bess v. Check Express, 294 F.3d 1298 (11th Cir. 2002), the Eleventh Circuit similarly distinguished its earlier decision in Chastain v. Robinson-Humphrey Co., 957 F.2d 851 (11th Cir. 1992). In Chastain, the plaintiff never personally signed the customer agreements at issue, and thus she contended that she was not bound by the arbitration provisions within them. 957 F.2d at 853. The court acknowledged that "parties cannot be forced to submit to arbitration if they have not agreed to do so." Id. at 854 (citing Volt Info. Scis., Inc., 489 U.S. at 478). Thus, "under normal circumstances, an arbitration provision with a contract admittedly signed by the contractual parties is sufficient to require the district court to send any controversies to arbitration." 957 F.2d at 854. The court found the case before it to be the "rare" case in which "the very existence of any agreement, including the existence of an agreement to arbitrate" was at issue. Id. Under those facts, "there was no presumptively valid general contract." Id. If a party did not sign the underlying contract, then the party may not have agreed to arbitration. Thus, the making of the arbitration agreement was at issue, and under the Federal Arbitration Act ("FAA") a court, not an arbitrator, should decide the question. Id. at 855. In Bess, the Eleventh Circuit noted both the distinctive facts of Chastain and its narrow holding. 294 F.3d at 1305. The court explained that "the focus of the court's decision in Chastain . . . was on the question of assent, i.e., whether the parties mutually had agreed to the contracts," and contrasted the claim before it that the deferred payment contracts violated state law: At bottom, Colburn challenges the content of the contracts, not their existence. Indeed, unlike the contracts in Chastain, both the arbitration agreement and the deferred payment contracts were signed by Colburn, and there is no question about Colburn's assent to those contracts. Thus, this case falls within the "normal circumstances" described in Chastain, where the parties have signed a presumptively valid agreement to arbitrate any disputes, including those about the validity of the underlying transaction. Therefore, the issue raised by Colburn--whether the deferred payment transactions are void as illegal--is one for the arbitrator, not the court. 294 F.3d at 1305-06.