Enforcement of Mandatory Mediation or Abritration Provisions

"Mississippi has long recognized the policy favoring arbitration and the courts will generally give full effect to an agreement that knowledgeable and experienced parties freely enter into. IP Timberlands Operating Co., Ltd. v. Demiss, 726 So.2d 96 (Miss. 1998). Further, an agreement to arbitrate will be liberally construed to encourage settlement of disputes in the prevention of litigation, and every reasonable presumption will be indulged in favor of the validity of the arbitration proceedings. Explo, Inc. v. Southern Natural Gas Co., 788 F.2d 1096 (5th Cir. (Miss.) 1986); IP Timberland, 726 So.2d 96; Hutto v. Jordan, 36 So.2d 809 (Miss. 1948).

Although Mississippi favors enforcement of arbitration provisions, an arbitration clause will not be enforced if it is found to be unconscionable. Under Mississippi law, an arbitration provision may be void as procedurally or substantively unconscionable, which is determined based on the facts as they existed at the time the agreement was made. York v. Georgia Pacific Corp., 585 F.Supp. 1265, 1278 (N.D. Miss. 1984). Procedural unconscionability generally can be shown if the plaintiff proves lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, a disparity in sophistication or bargaining power between the parties or a lack of opportunity to review and inquire about the terms of the contract. Id.

A party may also invalidate an arbitration provision where it is found to be substantively unconscionable. This typically requires that the party prove the terms of the clause are oppressive. See York, 585 F. Supp. at 1278. However, mutuality of obligation is not necessary to enforce an arbitration provision. Clinton Serve Co. v. Thornton, 100 So. 2d 863, 866 (Miss. 1958). For example, in Pridgen v. Greentree Financial Servicing Corp., 88 F. Supp. 2d 655 (S.D. Miss. 2000), the court upheld an arbitration provision even though one party had option to litigate some claims, while other party was required to submit all claims to arbitration"