First Weber Group, Inc. v. Synergy Real Estate Group, LLC ( 2015 )


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    2015 WI 34
    SUPREME COURT             OF   WISCONSIN
    CASE NO.:                2013AP1205
    COMPLETE TITLE:          First Weber Group, Inc. and James R. Imhoff,
    Jr.,
    Petitioners-Appellants-Petitioners,
    v.
    Synergy Real Estate Group, LLC and James N.
    Graham,
    Respondents-Respondents.
    REVIEW OF A DECISION OF THE COURT OF APPEALS
    (Reported at 
    353 Wis. 2d 492
    , 
    846 N.W.2d 348
    )
    (Ct. App. 2014 – Published)
    PDC No: 
    2014 WI App 41
    OPINION FILED:           March 24, 2015
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:           February 4, 2015
    SOURCE OF APPEAL:
    COURT:                Circuit
    COUNTY:               Dane
    JUDGE:                Juan B. Colás
    JUSTICES:
    CONCURRED:
    DISSENTED:
    NOT PARTICIPATING:
    ATTORNEYS:
    For        the    petitioners-appellants-petitioners,     there      were
    briefs       by    Kim   Moermond,   General   Counsel,   Madison,    and   oral
    argument by Kim Moermond.
    For the respondents-respondents, there was a brief filed by
    James N. Graham, Accession Law LLC, Madison, and oral argument
    by James N. Graham.
    An amicus curiae brief was filed by Debra P. Conrad on
    behalf of the Wisconsin Realtors Association.
    
    2015 WI 34
    NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    No.   2013AP1205
    (L.C. No.   2012CV4349)
    STATE OF WISCONSIN                               :            IN SUPREME COURT
    First Weber Group, Inc. and James R. Imhoff,
    Jr.,
    Petitioners-Appellants-Petitioners,
    FILED
    v.                                                           MAR 24, 2015
    Synergy Real Estate Group, LLC and James N.                           Diane M. Fremgen
    Clerk of Supreme Court
    Graham,
    Respondents-Respondents.
    REVIEW of a decision of the Court of Appeals.                     Reversed and
    cause remanded.
    ¶1     ANNETTE KINGSLAND ZIEGLER, J.               This is a review of a
    published decision of the court of appeals, First Weber Group,
    Inc. v. Synergy Real Estate Group, LLC, 
    2014 WI App 41
    , 
    353 Wis. 2d 492
    , 
    846 N.W.2d 348
    , which affirmed the circuit court's1
    order     denying    First    Weber   Group,    Inc.'s      petition       to    compel
    arbitration.2
    1
    The Honorable Juan B. Colás, Dane County Circuit Court,
    presided.
    2
    First     Weber    Group,   Inc.     and    James      R.    Imhoff, Jr.
    (continued)
    No.    2013AP1205
    ¶2     An arbitration panel ordered James N. Graham3 to pay
    First Weber for a disputed real estate brokerage commission.
    After   Graham    failed      to   pay,   First      Weber   filed   an    action   in
    circuit   court    to    confirm       the       arbitration   award.       In   that
    confirmation action, First Weber also requested the court to
    award it "costs and reasonable attorney fees" and "such other
    relief as the Court deems just and equitable."                          The circuit
    court ordered Graham to pay First Weber the commission awarded
    in the arbitration.            However, the circuit court denied First
    Weber's   request       for    costs      and     reasonable   attorney's        fees,
    reasoning that, "[u]nder 
    Wis. Stat. § 814.01
    , no costs may be
    awarded when confirming an arbitration award."                  Graham paid only
    the commission award.
    ¶3     First Weber subsequently filed an arbitration request
    with the Realtors Association of South Central Wisconsin, Inc.
    ("Realtors Association"), of which First Weber and Graham were
    ("Imhoff") are the named petitioners.     First Weber Group and
    Imhoff are members of the Realtors Associations of South Central
    Wisconsin, Inc. Imhoff is a licensed real estate broker and the
    owner and chief executive officer of First Weber Group, which is
    a real estate business entity licensed to do business in
    Wisconsin. We will refer to the petitioners as "First Weber."
    3
    Graham and Synergy Real Estate Group, LLC ("Synergy") are
    the two named respondents.   Graham was an officer and a member
    of Synergy until he resigned his membership therein, on
    October 16, 2009.     On December 31, 2009, Graham dissolved
    Synergy. Synergy was a real estate business entity licensed to
    do business in Wisconsin.     Graham is a licensed real estate
    broker and was a member of the Realtors Association of South
    Central Wisconsin, Inc.    We will refer to the respondents as
    "Graham."
    2
    No.    2013AP1205
    members.     First Weber's arbitration request asked the Realtors
    Association to arbitrate a contractual dispute over "costs and
    reasonable attorney's fees" because judicial confirmation of the
    commission    award    was   necessary.      The    Realtors      Association
    scheduled the matter regarding costs and reasonable attorney's
    fees for arbitration.        Graham refused to attend the arbitration
    hearing regarding costs and reasonable attorney's fees.                   As a
    result, no arbitration hearing was held.           First Weber then filed
    a petition in circuit court to compel arbitration of the dispute
    over costs and reasonable attorney's fees, arguing that Graham
    was bound by an arbitration agreement.         The circuit court denied
    the petition, holding that First Weber's arbitration request was
    untimely.     The court of appeals affirmed, also concluding that
    the arbitration request was untimely.
    ¶4      Graham argues that First Weber's petition to compel
    arbitration    was    correctly   denied    because   it    was     untimely.
    Although Graham concedes that he is bound by an arbitration
    agreement, he argues that it does not require him to arbitrate
    untimely    claims.      Graham   also    argues   that,   on     grounds   of
    estoppel, First Weber cannot arbitrate the dispute over costs
    and reasonable attorney's fees because it did not appeal the
    circuit court's resolution of this dispute in the previously
    filed    action      confirming   the     arbitrator's     award     of     the
    commission.
    ¶5      First Weber argues that an arbitrator, rather than a
    court, should decide whether its arbitration request was timely.
    First Weber also argues that its arbitration request was timely.
    3
    No.    2013AP1205
    First Weber further argues that it is not barred on grounds of
    estoppel from arbitrating the dispute over costs and reasonable
    attorney's fees.        Finally, First Weber argues that the circuit
    court in the present action erred by failing to defer to the
    Realtors      Association's      determination        that   this     dispute     is
    arbitrable.
    ¶6       We   conclude     that   under    the   arbitration         agreement,
    Graham's timeliness and estoppel defenses against arbitration
    are to be determined in the arbitration proceedings, not by a
    court    in   a    proceeding    under   
    Wis. Stat. § 788.034
            to   compel
    4
    All subsequent references to the Wisconsin Statutes are to
    the 2011-12 version unless otherwise indicated. Wisconsin Stat.
    § 788.03 (2011-12) provides in relevant part:
    The party aggrieved by the alleged failure, neglect or
    refusal of another to perform under a written
    agreement for arbitration may petition any court of
    record having jurisdiction of the parties . . . for an
    order directing that such arbitration proceed as
    provided for in such agreement. . . . The court shall
    hear the parties, and upon being satisfied that the
    making of the agreement for arbitration or the failure
    to comply therewith is not in issue, the court shall
    make an order directing the parties to proceed to
    arbitration in accordance with the terms of the
    agreement. If the making of the arbitration agreement
    or the failure, neglect or refusal to perform the same
    is in issue, the court shall proceed summarily to the
    trial thereof.
    4
    No.   2013AP1205
    arbitration.5    Graham's timeliness and estoppel defenses against
    arbitration are procedural arbitrability issues to be determined
    during the arbitration process, rather than by a court.                 Graham
    has   not   overcome   the     presumption    in   favor   of    arbitration.
    Accordingly,    we   reverse    the   court   of   appeals'     decision    and
    remand the cause to the circuit court with the instruction that
    First Weber's petition to compel arbitration be granted.6
    5
    The circuit court and court of appeals did not rely on
    Graham's estoppel argument. Before the circuit court, Graham's
    estoppel   argument   relied  on  issue   preclusion   and   claim
    preclusion.    However, Graham's response brief to this court
    devotes less than one page to his estoppel argument and does not
    indicate which type of estoppel he is relying upon. We do not
    separately address Graham's estoppel argument.      For the same
    reasons that we conclude that Graham's timeliness argument is to
    be determined during the arbitration process, we conclude that
    his estoppel argument is to be determined during the arbitration
    process, not by a court.     See also Cirilli v. Country Ins. &
    Fin. Servs., 
    2009 WI App 167
    , ¶18, 
    322 Wis. 2d 238
    , 
    776 N.W.2d 272
     ("Evaluating the collateral estoppel effect of the
    prior judgment does not challenge the validity of the
    arbitration clause or call into question whether this dispute
    falls within the scope of the arbitration clause.       Therefore,
    the effect of the prior judgment on this dispute is an issue to
    be decided by an arbitrator.") (citations omitted).
    6
    We do not resolve whether First Weber's arbitration
    request is barred on grounds of timeliness or estoppel because
    these issues are to be determined in the arbitration process.
    We express no opinion on whether these issues of timeliness or
    estoppel have already been decided in the arbitration process or
    how a Realtors Association arbitrator should rule on these
    issues if subsequently confronted with them.          Because we
    conclude that the circuit court erred by determining the
    procedural question of whether First Weber's arbitration request
    was timely, we do not determine whether the circuit court erred
    by   showing  no   deference   to   the  Realtors   Association's
    determination that the present dispute is arbitrable.
    5
    No.    2013AP1205
    I.        FACTUAL BACKGROUND
    ¶7      First Weber is a member of the Realtors Association.
    Graham was a member of the Realtors Association from January
    2006 through the end of 2011.                   In order to become a member of
    the Realtors Association, every prospective member must sign a
    membership application form that states: "I agree to abide by
    the Code of Ethics of the National Association of REALTORS®, and
    the Constitution, Bylaws, Rules and Regulations of [the Realtors
    Association of South Central Wisconsin], the State Association
    and the National Association."              It is undisputed that Graham and
    First Weber signed this document.
    ¶8      The agreement to arbitrate is contained in the Code of
    Ethics    of    the    National      Association       of   Realtors       ("Code   of
    Ethics"),      which   Realtors      Association      members    are   obliged      to
    follow.        Article 17 of the Code of Ethics and Standards of
    Practice reads in relevant part:
    In the event of contractual disputes or specific
    non-contractual disputes as defined in Standard of
    Practice    17-4    between  REALTORS®    (principals)
    associated with different firms, arising out of their
    relationship as REALTORS®, the REALTORS® shall submit
    the dispute to arbitration in accordance with the
    regulations of their Board or Boards rather than
    litigate the matter.
    Article   V,     section   7    of    the       Constitution    of   the     Realtors
    Association states that           its   members must follow the Code of
    Ethics' arbitration requirement.
    ¶9      The Code of Ethics also requires that a request for
    arbitration be filed in a timely manner.                    Section 47(a) of the
    6
    No.     2013AP1205
    Code of Ethics and Arbitration Manual provides in relevant part:
    "Requests     for      arbitration      must    be    filed   within      one       hundred
    eighty (180) days after the closing of the transaction, if any,
    or   within      one    hundred    eighty       (180)      days   after       the     facts
    constituting the arbitrable matter could have been known in the
    exercise of reasonable diligence, whichever is later."                              Several
    Realtors    Association         publications,        including    its     standardized
    form for requesting arbitration, contain a similar timeliness
    requirement with virtually identical language.                          Section 47(a)
    further provides that the 180-day time limit is suspended under
    certain     circumstances         and    that        questions    concerning           this
    suspension "will be determined by the Board President or the
    President's designee."7
    ¶10    First       Weber    paid   a   brokerage       commission        to     Graham
    because     he    represented      a    buyer        who   purchased      real      estate
    7
    Section 47(a) of the Code of Ethics and Arbitration Manual
    provides in relevant part:
    Suspension of filing deadlines: If the Board's
    informal    dispute   resolution    processes    (e.g.,
    ombudsmen, mediation, etc.) are invoked or initiated
    by a complainant (or potential complainant) with
    respect to an otherwise potentially arbitrable matter
    that becomes the subject of a subsequent arbitration
    request, the one hundred eighty (180) day filing
    deadline shall be suspended beginning with the date of
    the complainant's (or potential complainant's) request
    for informal dispute resolution service or assistance
    and shall resume when the informal dispute resolution
    procedures are concluded or terminated.       Questions
    about when informal dispute resolution began or ended
    will be determined by the Board President or the
    President's designee.
    7
    No.   2013AP1205
    property being sold by First Weber in the fall of 2008.                        First
    Weber       later   determined   that    Graham   was   not     entitled      to   the
    commission.
    ¶11       First Weber and Graham agreed to arbitrate the dispute
    over the brokerage commission.                Specifically, on February 25,
    2009,      First    Weber   signed   a   standardized    Realtors       Association
    form       for   requesting   arbitration.        On   April    8,    2009,   Graham
    signed       a   standardized    Realtors     Association      form    agreeing     to
    First Weber's arbitration request.             Each form stated:
    In the event I do not comply with the arbitration
    award and it is necessary for any party to this
    arbitration   to  obtain   judicial  confirmation  and
    enforcement of the arbitration award against me, I
    agree to pay the party obtaining such confirmation the
    costs and reasonable attorney's fees incurred in
    obtaining such confirmation and enforcement.
    ¶12       On October 8, 2009, a Realtors Association arbitration
    panel held a hearing and ordered Graham to pay $5,440 to First
    Weber within the next 15 days.                  Graham failed to pay.               On
    October 7, 2010——almost one year after the arbitration award was
    ordered——First Weber filed an action under 
    Wis. Stat. § 788.09
    (2009-10)8 to confirm the $5,440 arbitration award.9                          In its
    8
    Wisconsin Stat. § 788.09 (2009-10) provides:
    At any time within one year after the award is
    made any party to the arbitration may apply to the
    court in and for the county within which such award
    was made for an order confirming the award, and
    thereupon the court must grant such an order unless
    the award is vacated, modified or corrected under s.
    788.10 or 788.11.
    9
    Dane County case no. 10CV5329.
    8
    No.    2013AP1205
    initial filing, First Weber "pray[ed] for an order confirming
    the   arbitration    award,     for    entry   of   judgment   in     conformity
    therewith,      against   the   Respondents     individually    (jointly      and
    severally liable), and award [First Weber] costs and reasonable
    attorney fees, and for such other and further relief as the
    Court deems just and equitable."
    ¶13   On March 8, 2011, in a non-final written order,10 the
    circuit court11 confirmed the $5,440 arbitration award for the
    commission.      On March 16, 2011, in a non-final written order,12
    the   circuit    court    denied   First     Weber's   claim   for    costs   and
    reasonable attorney's fees.           The circuit court reasoned that
    [t]he exception to the American rule is narrowly drawn
    to permit arbitrators, not the court, to award costs
    and fees where such fees are expressly provided for in
    the arbitration agreement. [citations omitted] Under
    
    Wis. Stat. § 814.01
    , no costs may be awarded when
    confirming an arbitration award.    [citation omitted]
    This statutory rule is not altered by a contract
    provision.
    First Weber filed a motion for reconsideration 14 days later.
    10
    The circuit court stated that "[t]his Order is not the
    final document this Court will issue for purposes of the time
    limit for appeal."
    11
    The Honorable John C. Albert, Dane County Circuit Court,
    presided over the confirmation action.
    12
    See Werner v. Hendree, 
    2011 WI 10
    , ¶62, 
    331 Wis. 2d 511
    ,
    
    795 N.W.2d 423
     (citation omitted) ("[A] document must meet three
    conditions in order to be considered a final judgment or order
    for purposes of appeal: the document must (1) be entered by the
    circuit court, (2) dispose of the entire matter in litigation as
    to one or more parties, and (3) state on its face that it is the
    final document for purposes of appeal.").
    9
    No.   2013AP1205
    ¶14    On October 14, 2011, in a non-final oral ruling, the
    circuit court again confirmed the arbitration award and ordered
    Graham to pay the $5,440 commission awarded in the arbitration
    within 30 days.       The court denied First Weber's claim for costs
    and reasonable attorney's fees, reasoning that "the weight of
    authority precludes me from awarding attorney's fees especially
    in   this   case    where   both     parties   are   attorneys . . . ."      On
    October 31, 2011, Graham sent a check to First Weber in the
    amount of $5,440.       The check was accompanied by a letter stating
    that, by cashing the check, First Weber would agree to "satisfy
    any and all claims against [Graham] which were raised or which
    could have been raised in [the confirmation action] or in the
    underlying commission and arbitration dispute.                 [First Weber]
    release[s]     [Graham]       from     any     further   liability    arising
    therefrom."
    ¶15    On December 5, 2011, the circuit court issued a final
    written     order   denying   costs     and    reasonable   attorney's    fees,
    reasoning that the court "does not have authority to award costs
    and fees in a confirmation proceeding."              The circuit court also
    explained that its decision
    resolves only the confirmation itself, and does not
    involve any other claims, or potential claims, from
    the underlying transaction; nor does it address, or
    negate the validity and/or enforceability of the
    Arbitration Agreement between the parties, or any
    other issues arising from it, excepting only the award
    provided in the arbitration proceedings.
    ¶16    On or about May 8, 2012, First Weber requested the
    Realtors Association to arbitrate the contractual dispute with
    10
    No.     2013AP1205
    Graham over costs and reasonable attorney's fees allegedly due
    because First Weber previously had to file a 
    Wis. Stat. § 788.03
    action to confirm the arbitration award for the commission.                                   On
    June    5,    2012,      the    Realtors       Association      notified       Graham    that
    First      Weber's       arbitration          request    had    been     referred       to     a
    Realtors Association hearing panel.                        On August 27, 2012, the
    Realtors Association notified Graham that an arbitration hearing
    was scheduled for September 26, 2012.                          On September 11, 2012,
    Graham sent an e-mail to the Realtors Association's professional
    standards administrator, stating that he would not attend the
    hearing.          On September 26, 2012, the arbitration panel convened
    at   the     scheduled         time    and     Graham    did   not     appear.      At       the
    hearing, a Realtors Association official called Graham, who said
    that he would not attend the hearing.                           The arbitration panel
    determined that it could not arbitrate the matter without Graham
    present, so it cancelled the hearing.
    II.     PROCEDURAL HISTORY
    ¶17        On November 2, 2012, First Weber filed a 
    Wis. Stat. § 788.03
     petition to compel Graham to arbitrate.                               The petition
    sought       to    compel      arbitration        of    the    parties'    dispute       over
    payment of costs and reasonable attorney's fees.                               According to
    First      Weber,      Graham     was        contractually      obligated,       under       the
    language of the agreement to arbitrate, to pay the costs and
    reasonable         attorney's         fees    that   First     Weber    incurred    in       the
    previous court confirmation action.
    ¶18        On   April    12,     2013,    the     circuit       court    denied       the
    petition to compel arbitration.                         In its ruling, the circuit
    11
    No.     2013AP1205
    court first rejected Graham's argument that First Weber's claim
    for costs and reasonable attorney's fees was barred by issue
    preclusion    or     claim   preclusion.13              In   so     doing,    the        court
    reasoned    that     Graham,   by   virtue         of    his      membership        in    the
    Realtors    Association,       "agreed    to       submit      to    arbitration          any
    dispute with another member arising from their relationship as
    Realtors.     A dispute about payment of fees and costs incurred in
    confirming an arbitration award under the agreement is within
    the   scope    of     arbitrable    disputes."                 However,       the    court
    nonetheless denied the petition to compel arbitration because it
    concluded     that     the     request        to    arbitrate          was     untimely.
    Specifically, the court held that "the dispute was no longer
    arbitrable"14 because it found that First Weber's arbitration
    request was filed beyond a 180-day time limit imposed by the
    arbitration agreement and Realtors Association's rules.                             Hence,
    13
    The circuit court stated that, in the prior confirmation
    action, the circuit court:
    did not consider or decide on the merits whether
    [First Weber] was entitled under the arbitration
    agreement to recover the costs of confirming the
    award.   The court simply decided that the statutory
    fees and costs did not apply . . . and that in an
    [sic] confirmation of award case it lacked authority,
    i.e. competency to proceed, to decide whether a party
    was entitled to fees and costs of the confirmation
    proceeding  under   the  terms  of   the   arbitration
    agreement.
    14
    Relying on Kimberly Area School District v. Zdanovec, 
    222 Wis. 2d 27
    , 39, 
    586 N.W.2d 41
     (Ct. App. 1998), the circuit court
    stated that "[i]t is a general rule that arbitrability is to be
    determined by the courts."
    12
    No.    2013AP1205
    while     the    circuit        court    did        deny    the     petition       to   compel
    arbitration, the basis for the denial was that the court deemed
    the arbitration request to be untimely, not because the costs
    and reasonable attorney's fees issue was an improper subject for
    arbitration.
    ¶19      On March 20, 2014, the court of appeals affirmed the
    circuit court's order denying First Weber's petition to compel
    arbitration.        First Weber Grp., Inc., 
    353 Wis. 2d 492
    , ¶2.                             The
    court    of     appeals    likewise      held       that     Graham    was    bound     by   an
    arbitration agreement and assumed, without deciding, that the
    dispute over costs and reasonable attorney's fees was within the
    scope of that agreement.                Id., ¶¶4-7, 29, 31, 33.               The court of
    appeals       reasoned    that    the     180-day          time   limit   for      requesting
    arbitration "is an issue of substantive arbitrability reserved
    for judicial determination."                   Id., ¶43.           The court of appeals
    concluded that First Weber's arbitration request was untimely
    and affirmed the circuit court's order on that basis.                                     Id.,
    ¶¶49-55.
    III. STANDARD OF REVIEW
    ¶20      First Weber's petition to compel arbitration involves
    contract interpretation, which is a question of law that we
    review de novo.           Cirilli v. Country Ins. & Fin. Servs., 
    2009 WI App 167
    ,     ¶10,     
    322 Wis. 2d 238
    ,          
    776 N.W.2d 272
           (citations
    omitted).
    IV.    ANALYSIS
    ¶21      The parties seem to agree that Graham is bound by an
    agreement to arbitrate contractual disputes with other Realtors
    13
    No.   2013AP1205
    arising from their relationship as Realtors.15                    The parties also
    seem to agree that the arbitration agreement covers the subject
    matter of the dispute at issue.                 Thus, the crux of the issue
    before us is whether the timeliness of the arbitration request
    should be decided by a court or in arbitration.
    ¶22     Graham argues that First Weber's claim for costs and
    reasonable       attorney's    fees     is    not   arbitrable      because      First
    Weber's arbitration request was untimely.16                     Graham also argues
    that    this    timeliness    issue     is    for   a    court,    rather     than   an
    arbitrator, to decide.             First Weber argues that the issue of
    timeliness is procedural and for an arbitrator, rather than a
    court, to decide.
    ¶23     We hold that Graham's timeliness and estoppel defenses
    against      arbitration     are   to   be    determined     in    the    arbitration
    proceedings, not by a court in a proceeding under 
    Wis. Stat. § 788.03
           to   compel   arbitration.           We   base     our    decision    on
    Wisconsin's public policy favoring arbitration, the arbitration
    agreement,      the   Realtors     Association's         arbitration      procedures,
    15
    Courts routinely hold that Realtors are parties to an
    arbitration agreement by virtue of their membership in a local
    Realtors association that requires them to arbitrate certain
    disputes.   See Lane v. Urgitus, 
    145 P.3d 672
    , 681 (Colo. 2006)
    (collecting cases).
    16
    Graham argues in his brief to this court that, although
    the present dispute "was 'arbitrable' in the sense that it was
    the type of claim that could have been arbitrated if pursued in
    a timely manner in the proper venue, the claim was not
    'arbitrable' when pursued more than a year after first pursuing
    the claim in litigation."
    14
    No.     2013AP1205
    the limited role of courts in actions to compel arbitration
    under § 788.03, and relevant case law.
    A. Public Policy Favoring Arbitration
    ¶24     Wisconsin has a "policy of encouraging arbitration as
    an    alternative    to    litigation . . . ."          Kemp      v.    Fisher,     
    89 Wis. 2d 94
    ,       100,    
    277 N.W.2d 859
          (1979).        "The      Wisconsin
    Arbitration Act embodies this state's clearly established public
    policy    to    enforce    agreements      to   arbitrate."            Cirilli,    
    322 Wis. 2d 238
    , ¶11 (citation omitted).              "[A]rbitration is meant to
    be    a   swift    and    inexpensive     process     that   is    guided     by     a
    contractual agreement."           Employers Ins. of Wausau v. Jackson,
    
    190 Wis. 2d 597
    , 611, 
    527 N.W.2d 681
     (1995).                 Indeed, "the goal
    of arbitration is 'to resolve the entire controversy out of
    court without the formality and expense that normally attaches
    to the judicial process.'"           Borst v. Allstate Ins. Co., 
    2006 WI 70
    , ¶61, 
    291 Wis. 2d 361
    , 
    717 N.W.2d 42
     (quoted source omitted).
    ¶25     In an action to compel arbitration, a court presumes
    that its role is limited to determining whether the                          parties
    agreed to arbitrate the subject matter of the dispute at issue.
    See Kimberly Area Sch. Dist. v. Zdanovec, 
    222 Wis. 2d 27
    , 37-39,
    
    586 N.W.2d 41
     (Ct. App. 1998).                 When exercising that role, a
    court employs a "strong presumption" that the parties agreed to
    arbitrate the subject matter of the dispute at issue when "the
    contract in question contains an arbitration clause."                       Cirilli,
    
    322 Wis. 2d 238
    ,       ¶14    (citing    Kimberly   Area     Sch.      Dist.,    222
    Wis. 2d at 39).
    B. The Arbitration Agreement and Procedure
    15
    No.    2013AP1205
    ¶26    First Weber and Graham are parties to an arbitration
    agreement.               When       they        became          members         of        the    Realtors
    Association, they agreed to comply with the National Association
    of Realtors' Code of Ethics.                         Article 17 of the Code of Ethics
    provides that, in the event of a contractual dispute "between
    REALTORS® (principals) associated with different firms, arising
    out    of    their       relationship           as     REALTORS®,           the      REALTORS®          shall
    submit       the    dispute         to     arbitration               in     accordance          with       the
    regulations of their Board or Boards rather than litigate the
    matter."           Under      section       44(a)          of    the        Code      of       Ethics       and
    Arbitration          Manual,         "[t]he       duty          to     submit         to       arbitration
    continues          in    effect          even     after         membership            lapses          or    is
    terminated, provided that the dispute arose while the respondent
    was    a     REALTOR® . . . ."                   The      Realtors           Association's              rules
    expressly          require         its    members          to        obey      this        agreement         to
    arbitrate.          For example, Article V, section 7 of the Realtors
    Association's           Constitution            requires         its      members         to    obey       "the
    duty    to    arbitrate            controversies           arising          out      of     real      estate
    transactions            as    specified          by       Article         17    of        the    Code       of
    Ethics . . . ."              The Realtors Association provides penalties for
    failure to comply with the duty to arbitrate.                                              Specifically,
    Article V, section 2 of the Realtors Association's Constitution
    provides that "[a]ny member of the [Realtors Association] may be
    reprimanded, fined, placed on probation, suspended, or expelled
    by     the     Board          of     Directors             for        a     violation            of        this
    Constitution . . . ."
    16
    No.     2013AP1205
    ¶27    The     arbitration          agreement           at     issue         requires           an
    arbitration request to be timely filed.                              Section 47(a) of the
    Code   of    Ethics     and       Arbitration       Manual,         which     is          binding      on
    Realtors       Association              members,         provides:          "Requests                 for
    arbitration must be filed within one hundred eighty (180) days
    after the closing of the transaction, if any, or within one
    hundred      eighty     (180)      days    after         the   facts       constituting               the
    arbitrable      matter      could       have   been       known      in    the       exercise          of
    reasonable diligence, whichever is later."                                This provision is
    not statutory.        It is not agreed upon outside of the arbitration
    process.       It is not a statute of limitations or a statute of
    repose.      The 180-day time limit is required only because it is
    contained in the Realtors' agreement to arbitrate by reference
    to the Realtors Association's rules and the National Association
    of   Realtors'      Code     of    Ethics.          In    addition,        this           time    limit
    comprises      an   element        of    reasonableness             and   can       be     suspended
    under certain circumstances.                   The Realtors Association arbiters
    are "comparatively more expert [than a court] about the meaning
    of their own rule" and "comparatively better able to interpret
    and to apply it."             Howsam v. Dean Witter Reynolds, Inc., 
    537 U.S. 79
    , 85 (2002).               Thus, "it is reasonable to infer that the
    parties      intended      the     [arbitration]          agreement        to       reflect           that
    understanding."            
    Id.
     (citing First Options of Chicago, Inc. v.
    Kaplan,      
    514 U.S. 938
    ,       944-45      (1995)).              "[P]arties             to    an
    arbitration         contract       would       normally         expect          a     forum-based
    decisionmaker         to     decide       forum-specific              procedural             gateway
    matters."      Id. at 86.
    17
    No.    2013AP1205
    ¶28     Likewise,             the     Realtors       Association's        arbitration
    procedures are designed to allow disputes to be resolved through
    the arbitration process.17                  The arbitration procedures provide a
    process     by        which    a     controversy       will     be   determined       to    be
    arbitrable or be dismissed.                    Nowhere is it contemplated that
    courts     may    make        this       determination.         In   particular,       after
    receiving        an     arbitration         request,      the    Realtors      Association
    forwards the request to a Grievance Panel, which determines,
    inter alia, "whether the controversy described is an arbitrable
    matter."     The Grievance Panel either dismisses the arbitration
    request or refers the matter for arbitration before a Hearing
    Panel.     Either decision by the Grievance Panel may be appealed
    to   the    Realtors           Association's          Board     of    Directors,       which
    determines       whether        to       dismiss    the   matter     or   refer      it    for
    arbitration.18          If arbitrable, the matter is arbitrated before a
    Hearing Panel, which renders a binding decision.                          The fact that
    the Realtors Association's arbitration process is to determine
    "whether    the        controversy         described      is    an   arbitrable      matter"
    supports    a     conclusion         that     the   timeliness       issue     is   for    the
    17
    This procedure is described in various documents in the
    record, including a document titled "REALTORS® Association of
    South Central Wisconsin, Inc. Filing Ethics Complaints and
    Arbitration    Requests"   and    the   Realtors    Association's
    standardized forms for requesting and agreeing to arbitration.
    18
    In the present case, the Grievance Panel referred the
    matter for arbitration and notified Graham to that effect.
    Graham did not appeal that decision or argue to the Realtors
    Association that First Weber's arbitration request was untimely.
    18
    No.    2013AP1205
    Realtors     Association's       arbitration        process,    not    a     court,    to
    decide.      See Howsam, 
    537 U.S. at 86
    .
    ¶29    In sum, the Realtors Association's rules and grievance
    process intend that disputes between its members be resolved out
    of   court    and    demonstrate     that      its    arbitration       process       may
    determine whether an arbitration request was timely.
    C. Courts Have a Limited Role in Arbitration
    ¶30    We now turn to the limited role that Wisconsin courts
    have in arbitration.        We first discuss a court's role under 
    Wis. Stat. § 788.03
    , which authorizes courts to compel arbitration
    according to the terms of an arbitration agreement.                            We will
    next discuss case law that explains that a court's role in an
    action to compel arbitration is generally limited to determining
    whether the parties agreed to arbitrate the subject matter of
    the dispute at issue.
    1. Legislative Guidance
    ¶31    The legislature has determined that the courts have a
    limited role in the context of arbitration.                    "Judicial review of
    arbitration      awards     is    very      limited."           Milwaukee       Prof'l
    Firefighters, Local 215, IAFF, AFL-CIO v. City of Milwaukee, 
    78 Wis. 2d 1
    ,     21,   
    253 N.W.2d 481
           (1977).       The     legislature         has
    recognized,     however,    that    not       all    disputes    can    be    resolved
    without court intervention.           For example, if a party refuses to
    pay an arbitration award, that award can be enforced through a
    petition to confirm under 
    Wis. Stat. § 788.09
    .                    Similarly, 
    Wis. Stat. § 788.03
     authorizes a circuit court to compel parties to
    arbitrate a dispute according to the terms of their arbitration
    19
    No.     2013AP1205
    agreement.        Employers Ins. of Wausau, 
    190 Wis. 2d at 613-14
    .
    The case at issue is an action under § 788.03 seeking to compel
    Graham to arbitrate.
    ¶32        In an action to compel arbitration under 
    Wis. Stat. § 788.03
    ,        "the    issues      are     limited      to    'the     making       of     the
    arbitration       agreement       or   the    failure,         neglect   or        refusal   to
    perform' under the agreement."19                   Pilgrim Inv. Corp. v. Reed, 
    156 Wis. 2d 677
    , 684, 
    457 N.W.2d 544
     (Ct. App. 1990) (quoting 
    Wis. Stat. § 788.03
    ).            When   determining         whether       a     dispute       is
    arbitrable, a "court's function is limited to a determination
    whether there is a construction of the arbitration clause that
    would cover the grievance on its face and whether any other
    provision of the contract specifically excludes it."                               Joint Sch.
    Dist.     No.    10,    City    of   Jefferson       v.   Jefferson      Ed.        Ass'n,    
    78 Wis. 2d 94
    , 111, 
    253 N.W.2d 536
     (1977); see also Cirilli, 
    322 Wis. 2d 238
    , ¶14.              "When the court determines arbitrability it
    must exercise great caution. The court has no business weighing
    19
    In an action to compel arbitration, a court also may
    consider whether a party failed to appoint an arbitrator as
    required by the terms of an arbitration agreement. Employers
    Ins. of Wausau v. Jackson, 
    190 Wis. 2d 597
    , 613-16, 
    527 N.W.2d 681
     (1995).
    Graham argues that the petition to compel arbitration must
    be denied because his failure to arbitrate is not a failure "to
    perform under a written arbitration agreement," see 
    id. at 613
    ,
    because the arbitration agreement does not require him to
    arbitrate untimely claims. This argument hinges on whether the
    arbitration request was untimely.     As we conclude in this
    opinion, Graham's timeliness argument is to be decided in the
    arbitration process, not by a court.
    20
    No.       2013AP1205
    the merits of the grievance. It is the arbitrators' decision for
    which       the    parties    bargained."          Joint   Sch.    Dist.      No.    10,    78
    Wis. 2d at 111.
    ¶33        First     Weber    and      Graham    seem      to    agree        that    a
    controversy          over    costs     and     reasonable      attorney's           fees    is
    arbitrable under their arbitration agreement.                          The disagreement
    between First Weber and Graham rests on whether arbitration of
    First Weber's claim is precluded on the basis of timeliness or
    estoppel and whether a court or arbitration should decide these
    issues.20
    2. Substantive Arbitrability and Procedural Arbitrability
    ¶34        "Arbitrability questions generally fall into one of
    two     categories."           1     Larry     Edmonson,       Domke     on     Commercial
    Arbitration § 15:4 (3d ed. 2014).                      "Substantive arbitrability
    refers to whether the dispute involves a subject matter which
    the parties have             contracted to submit to arbitration."                          Id.
    "Procedural          arbitrability          concerns   issues      such       as     whether
    certain procedures apply to a particular dispute, whether such
    procedures         were     followed    or     excused,    and     whether         unexcused
    failure to follow procedure avoids the duty to arbitrate."                                  Id.
    "The    threshold         question     of    whether   a    matter      is    subject       to
    20
    As we explained earlier, we do not separately address
    estoppel.   Our discussion of why the timeliness issue is to be
    decided in the arbitration process explains why the estoppel
    issue is to be decided in the arbitration process.    See supra
    note 5.
    21
    No.   2013AP1205
    arbitration must be determined from the terms of the parties'
    agreement."        Id.
    ¶35    Graham and First Weber dispute whether the time limit
    at issue is a matter               of procedural arbitrability.               Although
    Graham concedes that timeliness "may be" a procedural issue, he
    contends that it "is also a substantive issue."                        The distinction
    between substantive arbitrability and procedural arbitrability
    issues is important because issues of substantive arbitrability
    generally are decided by courts, whereas issues of procedural
    arbitrability generally are determined during the arbitration
    process.         Graham also argues that we should not follow Howsam
    because     it    is     distinguishable.          First    Weber   argues    that    an
    arbitrator, rather than a court, may decide the time limit issue
    because it is a matter of procedural arbitrability.                       First Weber
    urges us to rely on Howsam and BG Group, PLC v. Republic of
    Argentina, 572 U.S. ___, 
    134 S. Ct. 1198
     (2014), in which the
    United States Supreme Court held that a time limit for seeking
    arbitration        is     an    issue    of    procedural      arbitrability.         We
    determine        that    issues    such       as   timeliness    and     estoppel    are
    matters of procedural arbitrability and are to be decided during
    the arbitration process, not                  by   a court,     unless the parties
    agreed otherwise.
    ¶36    In an action to compel arbitration, a court's role
    generally is limited to determining the question of substantive
    arbitrability, unless the parties specifically agreed otherwise.
    See    Kimberly          Area     Sch.        Dist.,    222     Wis. 2d at      37-39.
    Specifically,           the    court    decides     "whether     the     [arbitration]
    22
    No.    2013AP1205
    agreement     could     cover     the     controversy,"      not    whether      the
    agreement "expressly covers the dispute."                 Racine Educ. Ass'n v.
    Racine Unified Sch. Dist., 
    176 Wis. 2d 273
    , 284, 
    500 N.W.2d 379
    (Ct. App. 1993) (citing Joint Sch. Dist. No. 10, 
    78 Wis. 2d at 111
    ).    Given the limited role of a court, the court must order
    arbitration if the arbitration agreement could cover the subject
    matter of the dispute.           Id. at 284-85.       Any doubt concerning the
    scope of the agreement must be resolved in favor of compelling
    arbitration.          Cirilli,    
    322 Wis. 2d 238
    ,     ¶14   (citing     AT & T
    Techs. v. Commc'ns Workers, 
    475 U.S. 643
    , 650 (1986)).
    ¶37   Issues of procedural arbitrability are to be resolved
    during arbitration, rather than by a court, unless the parties
    agreed otherwise.        BG Grp., 
    134 S. Ct. at 1207-08
    ; Howsam, 
    537 U.S. at 83-84
    .     Issues     of    procedural    arbitrability       "include
    claims of 'waiver, delay, or a like defense to arbitrability.'"
    BG Grp., 
    134 S. Ct. at 1207
     (quoting Moses H. Cone Memorial
    Hospital v. Mercury Constr. Corp., 
    460 U.S. 1
    , 25 (1983)).                      They
    also include "the satisfaction of 'prerequisites such as time
    limits, notice, laches, estoppel, and other conditions precedent
    to an obligation to arbitrate.'"                
    Id.
     (quoting Howsam, 
    537 U.S. at 85
    ) (emphasis added) (quotation marks omitted).                       "Questions
    of mere delay, laches, statute of limitations, and untimeliness
    raised to defeat compelled arbitration are issues of procedural
    arbitrability     exclusively           reserved    for    resolution      by   the
    arbitrator."      Edmonson, supra, § 15:4.                The vast majority of
    state courts hold that these procedural issues are presumptively
    for an arbitrator to decide.                   BG Grp., 
    134 S. Ct. at
    1207
    23
    No.     2013AP1205
    (citing Revised Uniform Arbitration Act of 2000 § 6, Comment 2,
    7 U.L.A. 13 (Supp. 2002)).                  "The timeliness of a demand for
    arbitration          is     an   issue    for        arbitrators,       rather       than    the
    courts."        Edmonson, supra, § 19:2 (3d ed. Supp. 2014).
    ¶38        In the present case, the circuit court determined that
    the subject matter of costs and reasonable attorney's fees was
    within the scope of the arbitration agreement.                                 The court of
    appeals assumed, without deciding, that this determination was
    correct.        Graham does not dispute that the subject matter of
    costs and reasonable attorney's fees is within the scope of the
    arbitration agreement.                  Instead, the circuit court, court of
    appeals,       and    Graham      all    reason       that    the      timeliness       of   the
    request to arbitrate is an issue for the court to decide.                                     In
    light     of    the       distinction    between       a    substantive        arbitrability
    issue and a procedural arbitrability issue, we conclude that
    timeliness        and       estoppel      clearly          fall       within     the     latter
    category.21       By way of further example, we now discuss Howsam, BG
    Group, and Kimberly Area School District.
    ¶39        In Howsam, Karen Howsam relied on investment advice
    from Dean Witter Reynolds, Inc.                      Howsam, 
    537 U.S. at 81
    .                Their
    client         service       agreement      contained             a     clause       requiring
    arbitration of any dispute between them that concerned or arose
    21
    We reject Graham's argument that the timeliness issue is
    a matter of both substantive and procedural arbitrability.    He
    cites no authority for that proposition.        The overwhelming
    weight of authority, which we find highly persuasive, holds that
    timeliness is a matter of procedural arbitrability.
    24
    No.      2013AP1205
    from   their       client    relationship.         
    Id.
           The   agreement       also
    provided that Howsam could select the arbitration forum.                        
    Id. at 82
    .     Howsam requested the National Association of Securities
    Dealers ("NASD") to arbitrate her dispute with Dean Witter.                         
    Id.
    Under the NASD's rules, an arbitration request must be filed
    within six years of the event giving rise to the dispute.                           
    Id.
    Dean Witter filed suit, asking a U.S. district court to declare
    the dispute ineligible for arbitration because the arbitration
    request was filed beyond the NASD's six-year time limit.                            
    Id.
    The district court dismissed the action, holding that an NASD
    arbitrator, not the court, should decide whether the request was
    timely.      
    Id.
          The United States Court of Appeals for the Tenth
    Circuit reversed, concluding that the time limit concerned the
    dispute's "arbitrability" and thus was an issue for a court to
    decide.      
    Id.
    ¶40    The     Supreme   Court   reversed      the    court       of   appeals,
    holding that the time limit was an issue for an arbitrator to
    decide.      
    Id. at 82-83
    .      The Court held that the timeliness issue
    was    a     matter     of   procedural        arbitrability       and     hence    was
    presumptively for an arbitrator to decide.                   
    Id. at 84-85
    .          The
    Court also held that Howsam failed to overcome that presumption
    because she failed to demonstrate that the parties intended to
    have a court decide the timeliness issue.                    
    Id. at 85-86
    .          The
    Court relied on the similarity between a time limit and other
    potential      defenses      against    arbitration,        such   as     waiver    and
    delay, which the Court in previous decisions held were matters
    of procedural arbitrability.              
    Id. at 84-85
    .            The Court also
    25
    No.    2013AP1205
    relied on the Revised Uniform Arbitration Act of 2000, which
    sought to incorporate the law of the vast majority of states and
    which    explained        that    time      limits        are        matters    of     procedural
    arbitrability.         
    Id.
     (citing Revised Uniform Arbitration Act of
    2000 § 6(c), and comment 2, 7 U.L.A. 12-13 (Supp. 2002)).
    ¶41     Similarly,        in   BG    Group,        the        United    States    Supreme
    Court reaffirmed that a time limit for seeking arbitration is a
    matter of procedural arbitrability.                            In that case, the United
    Kingdom       and   Argentina         had     a    treaty       for     resolving        disputes
    between one of those nations and an investor from the other
    nation.       BG Grp., 
    134 S. Ct. at 1203
    .                      The treaty allowed for a
    dispute to be arbitrated if it had been submitted to a court and
    18 months had elapsed without a final decision.                                 
    Id.
         Argentina
    and a British investor, BG Group, agreed to arbitrate a dispute
    in Washington, D.C.              
    Id. at 1204
    .              The arbitrators determined
    that    they    had    jurisdiction           notwithstanding            the    fact     that   BG
    Group    did    not    file      suit      and     wait    18        months    before     seeking
    arbitration.          
    Id. at 1205
    .                The arbitrators awarded BG Group
    $185 million in damages.                
    Id.
                Each side filed a petition for
    review in the District Court for the District of Columbia, with
    BG    Group    seeking     to     have      the        award    confirmed       and     Argentina
    seeking to have the award vacated.                             
    Id.
         Argentina argued in
    part that the arbitrators lacked jurisdiction because BG Group
    did not file suit and wait 18 months before seeking arbitration.
    
    Id.
         The district court confirmed the award.                           
    Id.
         The Court of
    Appeals       for   the    District         of     Columbia          Circuit     reversed       the
    district court's decision.                  
    Id.
             Interpreting and applying the
    26
    No.    2013AP1205
    treaty's litigation requirement de novo, the court of appeals
    held that the arbitrators lacked jurisdiction.                         
    Id.
    ¶42   The     Supreme      Court    reversed     the    court       of     appeals,
    holding that a court must defer to the arbitrators' decision
    that they had jurisdiction, because the litigation requirement
    was a matter of procedural arbitrability.                      
    Id. at 1206-08, 1213
    .
    The Court reasoned that the litigation requirement "determines
    when the contractual duty to arbitrate arises, not whether there
    is    a    contractual        duty    to     arbitrate    at   all."          
    Id. at 1207
    (citation omitted).               Furthermore, that requirement's 18-month
    waiting period was "highly analogous" to the time limit at issue
    in Howsam, which was also a matter of procedural arbitrability.
    
    Id. at 1207-08
    .               Argentina failed to overcome the presumption
    that the litigation requirement issue, as a matter of procedural
    arbitrability, was presumptively for an arbitrator to decide.
    
    Id. at 1210
    .           Therefore, when reviewing the arbitration award, a
    court      must      show   "considerable       deference"       to    the    arbitrators'
    decision        that    the     litigation     requirement       was    not    applicable.
    
    Id.
    ¶43   In     contrast      to    Howsam   and   BG   Group,        the    court   of
    appeals in Kimberly Area School District was presented with a
    dispute over substantive arbitrability.                    In that case, a federal
    lawsuit         was     filed     against      a    teacher      for     her        allegedly
    inappropriate discipline of students.                     Kimberly Area Sch. Dist.,
    222 Wis. 2d at 31-32.              The parties to the federal lawsuit signed
    a settlement agreement providing that a three-person panel would
    decide whether the teacher should be fired, the panel's decision
    27
    No.       2013AP1205
    would be final and binding, and the teacher would not contest
    the panel's decision.            Id. at 32-33.           The panel voted to fire
    the teacher.          Id. at 34.        The teacher then filed a grievance
    seeking to arbitrate the settlement agreement, because she had a
    right     to    arbitrate       under     the    teachers        union's          collective
    bargaining agreement.           Id. at 35.
    ¶44     The court of appeals held that the teacher had no
    right to arbitrate over the settlement agreement.                                 Id. at 46.
    The court of appeals first determined that it had jurisdiction
    to    decide    the     question     because      it    was     one       of    substantive
    arbitrability.          Id.     at   41-42.       The        court    of       appeals       next
    determined that the dispute was not arbitrable.                            Id. at 45-46.
    The court of appeals stated that "a settlement agreement 'is an
    arbitrable subject when the underlying dispute is arbitrable,
    except in circumstances where the parties expressly exclude the
    settlement      agreement       from    being     arbitrated.'"                 Id.     at     46
    (quoting Niro v. Fearn Int'l, Inc., 
    827 F.2d 173
    , 175 (7th Cir.
    1987)).      Because the settlement agreement expressly excluded the
    possibility of arbitrating the panel's decision, the parties had
    not agreed to arbitrate a dispute over the settlement agreement.
    
    Id.
         Thus, Kimberly Area School District does not stand for the
    proposition      that    an   issue     like     timeliness          or    estoppel       is    a
    proper matter for a court to consider in an action to compel
    arbitration.           Instead,      that     case      is     consistent          with       the
    proposition      that     the     court     generally         may     weigh        in    on    a
    substantive      arbitrability         issue,    such    as     whether         the     subject
    matter of the dispute is subject to arbitration.
    28
    No.   2013AP1205
    ¶45    We find Howsam and BG Group highly persuasive.22                In
    those cases, the Supreme Court explained that courts presume
    that the question of substantive arbitrability is for a court to
    decide and that matters of procedural arbitrability are for an
    arbitrator to decide.           BG Grp., 
    134 S. Ct. at 1206-07
    .             These
    presumptions are consistent with Wisconsin law.23                The rationale
    behind the presumption associated with substantive arbitrability
    is   to     protect   parties    from   being   compelled   to    arbitrate    a
    dispute that they did not agree to arbitrate.               Howsam, 
    537 U.S. at 83-84
    ; First Options, 
    514 U.S. at 945
    ; see also Kimberly Area
    Sch.      Dist.,   222   Wis. 2d at     39.     The   rationale    behind    the
    22
    Graham argues that Howsam is distinguishable because the
    time limit at issue in that case was not part of an arbitration
    agreement, but rather was imposed only by the forum in which
    arbitration was sought. However, the Supreme Court in BG Group
    relied on Howsam, although the time limit at issue in BG
    Group was part of an arbitration agreement.    BG Grp., PLC v.
    Republic of Argentina, 572 U.S. ___, 
    134 S. Ct. 1198
    , 1203,
    1206-08 (2014). Moreover, the time limit at issue in Howsam was
    "effectively incorporated . . . into the parties' agreement."
    Howsam v. Dean Witter Reynolds, Inc., 
    537 U.S. 79
    , 86 (2002).
    Graham further argues that Howsam is distinguishable because it
    involved federal law, not Wisconsin law.     However, Wisconsin
    courts traditionally have followed the United States Supreme
    Court's principles regarding a court's limited function in
    actions to compel arbitration.    See Cirilli, 
    322 Wis. 2d 238
    ,
    ¶¶12-14. Thus, Graham's arguments for distinguishing Howsam are
    not persuasive.    Graham's response brief does not address BG
    Group, although First Weber's brief-in-chief devotes an entire
    page to that case.
    23
    Wisconsin courts have already adopted the presumption
    that the question of substantive arbitrability is generally for
    a court to decide. See Kimberly Area Sch. Dist., 222 Wis. 2d at
    39.
    29
    No.   2013AP1205
    presumption associated with procedural arbitrability is that it
    advances     the    public   policy     of    encouraging    arbitration       and
    enforcing arbitration agreements, see First Options, 
    514 U.S. at 945
    ; promotes arbitration's goal of speedy dispute resolution,
    see John Wiley & Sons, Inc. v. Livingston, 
    376 U.S. 543
    , 558-59
    (1964); and prevents courts from ruling on the merits of an
    underlying claim when determining whether to compel arbitration,
    see Cirilli, 
    322 Wis. 2d 238
    , ¶¶13, 17-18.                   Accordingly, the
    presumption        associated    with        procedural     arbitrability       is
    consistent with Wisconsin's public policy favoring arbitration,
    the arbitration agreement at issue, the Realtors Association's
    arbitration procedure, and the limited role of our state courts
    in actions under 
    Wis. Stat. § 788.03
     to compel arbitration.                    See
    supra ¶¶24-32.
    ¶46   In sum, Howsam, BG Group, and Kimberly Area School
    District demonstrate that a court's role in an action to compel
    arbitration    is    limited.     If    the    arbitration    agreement     could
    cover the subject matter of the dispute, which is an issue of
    substantive arbitrability, the court must order arbitration and
    resolve all doubts as to the scope of the agreement in favor of
    compelling arbitration.         Issues like timeliness or estoppel are
    matters of procedural arbitrability to be determined during the
    arbitration process, not by a court, unless the parties agreed
    otherwise.
    V. CONCLUSION
    ¶47   The purpose of the court's limited role in arbitration
    is   to    advance     Wisconsin's      public     policy     of     encouraging
    30
    No.    2013AP1205
    arbitration        and    enforcing        agreements     to     arbitrate.           Graham's
    argument, if accepted, would conceivably conflate the important
    distinction         between    issues       of     substantive        arbitrability          and
    issues    of       procedural       arbitrability.             Such    a   result          would
    undermine      the        purpose     of     arbitration,           wherein      arbitrable
    disputes are "to be decided, not by the court asked to order
    arbitration, but as the parties have agreed, by the arbitrator."
    See AT & T Techs., 
    475 U.S. at 650
    .                           Graham's argument that
    First Weber's arbitration request was untimely highlights why a
    court may not decide this timeliness issue.                          Graham argues that
    First Weber's "claim was no longer valid" after the 180-day time
    limit expired and that, "[a]fter 180 days, there is no longer a
    viable claim."            If we were to determine whether First Weber's
    claim is "valid" or "viable," we would impermissibly rule on the
    merits of First Weber's claim.                     See Cirilli, 
    322 Wis. 2d 238
    ,
    ¶¶13, 17.
    ¶48       In the case at issue, whether we are considering the
    public policy behind arbitration, the arbitration agreement and
    procedure,         a    court's     limited      role    in    an     action     to    compel
    arbitration under 
    Wis. Stat. § 788.03
    , and the relevant case
    law, each militates in favor of a determination that Graham's
    timeliness         and    estoppel     arguments          properly      belong        in     the
    arbitration process, not before the court.
    ¶49       We       conclude     that    under       the    arbitration       agreement,
    Graham's timeliness and estoppel defenses against arbitration
    are to be determined in the arbitration proceedings, not by a
    court    in    a       proceeding    under       
    Wis. Stat. § 788.03
         to    compel
    31
    No.     2013AP1205
    arbitration.       Graham's timeliness and estoppel defenses against
    arbitration are procedural arbitrability issues to be determined
    during the arbitration process, rather than by a court.                         Graham
    has   not    overcome    the     presumption      in    favor    of     arbitration.
    Accordingly,      we   reverse    the   court     of    appeals'      decision        and
    remand the cause to the circuit court with the instruction that
    First Weber's petition to compel arbitration be granted.
    By    the   Court.—The     decision    of   the    court     of       appeals    is
    reversed, and the cause is remanded to the circuit court.
    32
    No.   2013AP1205
    1