Employees frequently try to get out of arbitration agreements they signed by challenging the validity or interpretation of the agreement itself. A smart employer will anticipate such a contingency by including language in the agreement requiring arbitration of any dispute over the scope of arbitration. In effect, the employee agrees to arbitrate the need to arbitrate.nnIt is essential to include such language, because as the U.S. Supreme Court explained in a 1986 decision, “Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” Without such “clear and unmistakable” language that the arbitrator decides whether the parties agreed to arbitrate, you may end up wasting your money and years in court litigating this issue, which largely negates the benefits of arbitration.nnUnfortunately, even when there is such clear and unmistakable language in an employment contract, litigious employees and their counsel will still attempt to mount a courtroom attack. All it takes is a sympathetic judge who is willing to overlook the law. Then an employer can find itself fighting to enforce its contractual and legal right to arbitrate. This was the situation one of the country’s best known companies found itself in recently.