List what should be included in a drafter's "checklist" for ensuring that a mandatory arbitration clause is not unconscionable
What will be an ideal response?
A drafter's checklist for ensuring that a mandatory arbitration clause is not unconscionable should include the following determinations:
1. The contract is not a contract of adhesion; that is, one where the consumer could not meaningfully negotiate the inclusion and terms of the mandatory arbitration clause;
2. The mandatory arbitration clause and its provisions are not buried in fine print;
3. The provisions of the clause do not unduly favor the interests of the drafter of the contract;
4. The provisions of the clause do not impose significant costs on the consumer;
5. The provisions of the clause do not include a confidentiality requirement (which might make it difficult for consumers to share information); and
6. The provisions do not limit the ability of the consumer to obtain punitive damages.
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