Last July, I blogged that arbitration in New Mexico was likely not in line with US Supreme Court decisions because the N.M. Court of Appeals was too quick to review and declare unenforceable certain arbitration clauses. See Felts v. CLK Management, 2011-NMCA-062. In my next blog post, I'll discuss similar problems in a state Supreme Court decision issued since Felts.
However, in September (yes, I know, business is good these days and I am woefully behind in my blogging!), the Court of Appeals at least has redeemed itself slightly
by drawing the uncontroversial conclusion that a rehabilitation patient was bound by the center's arbitration clause where the patient authorized her granddaughter to complete individual authorization paperwork; that authorization paperwork clearly, expressly and repeatedly restricted the parties to arbitration to resolve any legal disputes; the rehab center's administration spent an hour and a half reviewing every section of the Admission Agreement with the granddaughter; and the granddaughter admitted to taking the papers home a reading them before signing. See Baron v. The Evangelical Lutheran Good Samaritan Society, 2011-NMCA-94, cert. dism.
by drawing the uncontroversial conclusion that a rehabilitation patient was bound by the center's arbitration clause where the patient authorized her granddaughter to complete individual authorization paperwork; that authorization paperwork clearly, expressly and repeatedly restricted the parties to arbitration to resolve any legal disputes; the rehab center's administration spent an hour and a half reviewing every section of the Admission Agreement with the granddaughter; and the granddaughter admitted to taking the papers home a reading them before signing. See Baron v. The Evangelical Lutheran Good Samaritan Society, 2011-NMCA-94, cert. dism.
The Court specifically rejected the claimant's procedural unconscionability arguments, wisely distinguishing plaintiff's case law. Notably, this was not a case in which a 37-page contract was reviewed for only for five minutes; the granddaughter here was not hurried into signing numerous documents that were not explained to her; and the document here clearly expressed that agreeing to arbitration was not a condition of admission.
Even more notable, however, the Court of Appeals hinted it may reverse its conclusions in Felts, regarding the effect on arbitrability of the unavailability of the agreed upon National Arbitration Forum (NAF). Specifically, the Court correctly observed that "[a] split in authority exists over whether the unavailability of the NAF as a forum for consumer disputes renders arbitration agreements contemplating NAF as a forum unenforceable, or whether the Federal Arbitration Act in such cases requires the [c]ourt to appoint an arbitrator. Id., para. 48, quoting Jones v. GGNSC Pierre LLC, 684 F.Supp.2d 1161, 1163 (D.S.D. 2010).
If you are interested in thoughtful arbitration or other neutral services, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.
