This Law Firm Publication by Jackson Lewis LLP discusses the New Jersey Supreme Court's recent holding in Cole v. Jersey City Medical Center that an employer waived its contractual right to arbitration by failing to raise arbitration as an affirmative defense until the eve of trial. The defendant employer in Cole did not raise the defense in pleadings, filed a motion for summary judgment and finally asserted the defense three days before the scheduled trial date. The court noted questions of waiver must focus on the totality of the circumstances in each case, and described seven factors for courts to analyze when deciding the issue of waiver, including the delay in making the arbitration request, the filing of any motions and their outcomes, and the extent of discovery conducted.