dissenting, with whom THOMAS, Chief Justice, joins.
I can agree with much of that said in the majority opinion. Arbitration is favored by public policy and by this Court, and the arbitration provisions of the Wyoming Public Works Standard Specifications do not apply to the issues in this case. But statutory requirements for binding arbitration cannot be ignored.
Section 1-36-103, W.S.1977 (part of the Uniform Arbitration Act), provides in pertinent part:
“A written agreement to submit any existing or future controversy to arbitration is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of the contract. * * * ” (Emphasis added.)
Once it is determined that the arbitration provisions of the Wyoming Public Works Standard Specifications do not apply,1 which determination was properly made by the trial court and in the first part of the majority opinion, there no longer existed a written agreement to arbitrate the issue upon which the arbitration award was. made. Section 1-36-103 is clear in its meaning and scope. An agreement to arbitrate must be in writing. It need not exist before the issue arises, but an enforceable agreement must be made at some point before the matter is submitted to arbitration, and such agreement must be in writing.
*550Such was recognized by the trial court. It said in part:
“Clearly the parties were not required by any written contract to submit their disputes to arbitration, nor did any Wyoming law require arbitration. * * * Wyoming law does specify that in order for an arbitration provision to be enforcible [sic], it must be in writing, W.S. sec. 1-36-103. * * *”
But that court went on to say that although the school district objected to the late request for arbitration, it was bound by the proceedings simply because it participated therein, thereby forming an agreement. The reasoning is not consistent. Participation is not a writing. Except for that in the Wyoming Public Works Standard Specifications, there was no other written agreement to arbitrate.
A meeting of the minds as required for an enforceable agreement never existed— written or oral. Strube attempted to go in the back door for arbitration, after perhaps missing the deadline to do so as set forth in the Wyoming Public Works Standard Specifications. In its letter, it said in part:
“ * * * Strube Construction has never acknowledged or admitted the Wyoming Public Works Standard Specifications are part of the contract documents in this matter. Strube, however, submits the matter to arbitration voluntarily and in the event the Wyoming Public Works Standard Specifications are found applicable the matter would need to be arbitrated. * * * ” (Emphasis added.)
Obviously, Strube intended to arbitrate only if the Wyoming Public Works Standard Specifications were determined to be applicable.
Likewise, the school district intended to arbitrate under such standard specifications with the contention that the deadline for arbitration contained therein was not met; but if it were determined that the deadline was met, the arbitration could proceed under the provisions of such standard specifications. Of interest is the fact that all of the procedural details necessary in an arbitration agreement as set forth in such standard specifications (choosing arbitrators, etc.) were followed except that concerning the 30-day filing deadline. The school district continually objected to the proceeding under the Wyoming Public Works Standard Specifications on the basis of a missed filing deadline. Its participation in the proceedings was with the understanding that its objection was overruled and that such proceedings were under the written agreement as set out in the Wyoming Public Works Standard Specifications. There was no agreement — meeting of the minds — to arbitrate, except that such be pursuant to the Wyoming Public Works Standard Specifications. With both the trial court and the majority opinion finding that the issue involved did not come within the purview of the Wyoming Public Works Standard Specifications, i.e., the arbitration agreement in these specifications did not cover this issue, there did not exist any agreement — written or oral — for arbitration of the issue.
The trial court also stated:
“At no time during the arbitration hearing did Appellant raise the issue or suggest that no arbitration agreement existed between the parties. A Motion to Dismiss for failure to timely request arbitration cannot be convoluted to mean that there was no agreement to arbitration. * * *”
Obviously, a motion to dismiss, directed at the arbitration agreement which both parties believed would be that under which the arbitration would proceed, would imply the lack of any other agreement. The school district argued its motion to dismiss at the outset of the case, contending that there was no enforceable agreement to arbitrate. For example, it argued:
“The problem that Strube has is he is trapped. If the arbitration provisions [of the Wyoming Public Works Standard Specifications] apply, then he is out of time and he is clearly out of time. If the arbitration provisions don’t apply, then he doesn’t have any agreement to arbitrate, we shouldn’t even been [sic] here in the first place. * * * ”
*551Since the trial court and the majority opinion properly found the “arbitration provisions don’t apply,” the motion to dismiss was clearly on the basis that there was no enforceable agreement to arbitrate. There was no “convolution.” A timely objection to this existence of an enforceable arbitration agreement was made before the hearing on the merits. The school district’s participation in the arbitration hearing was in recognition that its motion to dismiss was improperly denied. To have refused to participate further at that point, relying upon reversal to correct the error, would not have been in accordance with the recognized procedures when a preliminary motion is not granted. An appeal can only be taken from a final order.
However, the majority opinion goes even further in disregarding the statutory authority for binding arbitration. It holds that:
“An agreement to arbitrate need not be written and can arise as the result of the conduct of parties to an existing dispute regardless of whether or not they have previously contracted for arbitration. * * * ” (Emphasis added.)
This holding is in direct contradiction to the statutory authority for binding arbitration. Section 1-36-103, quoted supra, authorizes such only on the basis of a written contract.
The cases cited in the majority opinion to support the sweeping denunciation of the statutory language do not render such support. They concern the question of whether or not the issue for arbitration is within the scope of a contract recognized to have been written. They found that it was and, thus, uphold the arbitration. In other words, they concern that which was decided in the first part of the majority opinion — only they find the issue was in the scope of the written contract and not that it was not in such scope, as we properly find in this case.
The distinction is exemplified by the language defining the scope of the A.L.R.3d annotation cited in the majority opinion to support the sweeping conclusion contained therein and quoted supra:
“This annotation discusses the circumstances under which a party’s participation in an arbitration proceeding may result in waiver of that party’s right to stay arbitration proceedings, or set aside or modify an arbitration award, on the ground that the issue in dispute was not an arbitrable issue. The term ‘arbitrability,’ as used in this annotation, involves questions whether the issue in dispute was within the scope of a contractual arbitration clause of the contract or within the scope of a submission agreement.” (Emphasis added.) Annot., 33 A.L.R.3d 1242, 1243 (1970).
The quotation in the majority opinion from People v. Crystal River Corporation, 131 Colo. 163, 280 P.2d 429 (1955), to support the sweeping conclusion quoted supra is likewise misplaced. The arbitration proceedings therein were pursuant to mandatory arbitration provided by statute. A statutory procedure exists in Colorado whereby a claim must be presented to the game and fish commissioner for loss of domestic animals killed or damaged by wild animals. If dissatisfied with the determination of the claim, the matter is submitted to a board of arbitrators, whose award “shall be final.” The court held that the arbitrated question could not be relitigated in court. The quotation in the majority opinion is language used in this context and has no relevancy to the situation, as here, where there was no statutory requirement for arbitration — and no written agreement to do so.
The other citations in the majority opinion given to support the sweeping conclusion quoted supra are likewise flawed.
In National Cash Register Company v. Wilson, 8 N.Y.2d 377, 208 N.Y.S.2d 951, 171 N.E.2d 302 (1960), there was a collective bargaining agreement between the parties and a subsequent strike settlement agreement between them. The court held that the arbitration clause in the original agreement applied to the supplemental strike settlement agreement. It did not *552hold, as here, that the issue was beyond that upon which there was a written agreement to arbitrate, but held that arbitration was nonetheless proper. Additionally, there was no objection- to the proceedings before the hearing on the merits, as here.
In O’Malley v. Petroleum Maintenance Company, 48 Cal.2d 107, 308 P.2d 9 (1957), the scope of the arbitration provisions of a labor agreement were in issue. The parties also entered into a written submission agreement to arbitrate the question as to the scope of the arbitration proceedings— quite different than in this case in which the school district objected to arbitration as being beyond the scope (as it was ultimately found to be) and wherein there was no written meeting of the minds to present the scope issue to the arbitrators for a final and binding decision thereon. In fact, one of the grounds for vacating an award is when “[t]he arbitrators exceeded their powers.” Section 1 — 36—114(a)(iii), W.S.1977.
“ * * * The courts are to decide the question of whether a grievance or dispute arises under the terms of the bargaining agreement and should be arbitrated, unless the agreement clearly demonstrates that the question is reserved to the arbitrator. [Citation.] Although this court has said that arbitration is favored, it is a matter of contract, and a party cannot be required to submit any dispute to arbitration which he has not agreed to submit. [Citation.]” Panhandle Eastern Pipe Line Company v. Smith, Wyo., 637 P.2d 1020, 1024 (1981).
Having decided, in this case, that the issue was beyond that contained in the contract, arbitration should not be approved.
In New Jersey Manufacturers Insurance Company v. Franklin, 160 N.J.Super. 292, 389 A.2d 980 (1978), the court not only found that the scope of arbitration was limited by the contract (uninsured motorist endorsement which provided for arbitration as to liability of uninsured motorist tortfeasor and quantum of damages) and did not include the issue of coverage, but it held that:
“ * * * [M]ere participation in the arbitration does not conclusively bar a party from seeking a judicial determination of arbitrability, even as late as the time of claimant’s application to confirm the award. * * *
“ * * * if the objection to the arbitrator’s jurisdiction is made known, participation in the merits of the controversy does not dictate a finding of waiver. * * ⅜” 389 A.2d at 984.
Again, the case involved a question as to the scope of the arbitration agreement, and the jurisdiction was questioned, as here, before the hearing on the merits. Having found the issue to be beyond such scope (as is done in the first part of the majority opinion), the New Jersey court did not go on to approve the arbitration award (as is approved here in the second part of the majority opinion).
In American Motorists Insurance Company v. Llanes, 396 Mich. 113, 240 N.W.2d 203 (1976), the court rendered a four-paragraph per curiam opinion in which an arbitration award was upheld against the claim that the issue was not within the scope of the agreement. The holding was founded on the fact that the issue of arbitrability was not raised at arbitration. Again, the question was in relation to the scope of arbitration, and there was a written agreement to arbitrate.
In the other case cited by the majority opinion to support the statement that “[a]n agreement to arbitrate need not be written,” Coventry Teachers’ Alliance v. Coventry School Committee, R.I., 417 A.2d 886 (1980), the court again examined the written contract and written submission to determine if the issue was within the scope thereof. It found that it was. The court again noted that both parties participated in the arbitration without objection. Here, the majority opinion properly finds the issue not to be within the scope of the arbitration agreement, and that there was no written agreement to arbitrate the issue. Also, here, there was an objection to jurisdiction prior to the hearing.
*553I would reverse the trial court and vacate the award since there was no written agreement to arbitrate the issue and such fact was brought to the attention of the arbitrators before a hearing on the merits.
. If they were found to apply, then the consideration of the late filing of the demand for arbi-' tration pursuant to the terms thereof would be in order.