N.M. Stat. § 44-7A-7 (2026)

(a) An agreement contained in a record to submit to arbitration any existing or
subsequent controversy arising between the parties to the agreement is valid,
enforceable and irrevocable except upon a ground that exists at law or in equity for the
revocation of a contract.

    (b) The court shall decide whether an agreement to arbitrate exists or a controversy
is subject to an agreement to arbitrate.

     (c) An arbitrator shall decide whether a condition precedent to arbitrability has been
fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

   (d) If a party to a judicial proceeding challenges the existence of, or claims that a
controversy is not subject to an agreement to arbitrate, the arbitration proceeding may
continue pending final resolution of the issue by the court, unless the court otherwise
orders.

History: Laws 2001, ch. 227, § 7.

                                     ANNOTATIONS

Compiler's note. — Laws 2002, ch. 227, § 33 repealed the former Uniform Arbitration
Act, Sections 44-7-1 to 44-7-22 NMSA 1978, enacted by Laws 1971, ch. 168, §23. The
Uniform Arbitration Act compiled as 44-7A-1 to 44-7A-32 NMSA 1978 was enacted
effective July 1, 2001.

Requirement to arbitrate or otherwise waive an employee's individual statutory
rights must be clear and unmistakable. — Where plaintiff, an employee of the human
services department (HSD) and a member of a union, irrevocably elected to arbitrate an
appeal of a demotion that he received for testifying as a witness in a lawsuit against
HSD, but before any proceedings had been held, plaintiff filed a complaint in district
court under the Whistleblower Protection Act (WPA), 10-16C-1 NMSA 1978 to 10-16C-6
NMSA 1978, alleging that HSD violated his rights under the WPA when it retaliated
against him by disciplining him and demoting him for testifying that HSD's employees
had falsified documents, and where HSD moved to dismiss plaintiff's case and to
compel arbitration, arguing that pursuant to the union's collective bargaining agreement
(CBA), plaintiff's irrevocable election of arbitration obligated him to resolve his disputes
with HSD through arbitration, the district court denied HSD's motion to dismiss and
compel arbitration, reasoning that there are remedies under the WPA that are not
available under the CBA and plaintiff did not give those up when he elected to arbitrate,
the district court did not err in denying HSD's motion to dismiss and compel arbitration,
because any collective bargaining agreement requirement to arbitrate or otherwise
waive an employee's right to file a lawsuit involving an employee's individual statutory
rights must be clear and unmistakable, and in this case, the CBA did not include a clear
and unmistakable requirement that plaintiff arbitrate his claim under the WPA. Garcia v.
N.M. Human Servs. Dep't, 2026-NMSC-001, rev'g A-1-CA-39845, mem. op. (N.M. Ct.
App. June 13, 2022) (nonprecedential).

Unconscionability. — Unconscionability is an affirmative defense to contract
enforcement. It is an equitable doctrine, rooted in public policy, which allows courts to
render unenforceable an agreement that is unreasonably favorable to one party while
precluding a meaningful choice of the other party. Peavy v. Skilled Healthcare Group,
Inc., 2020-NMSC-010, aff'g No. A-1-CA-35494, mem. op. (N.M. Ct. App. Oct. 22, 2018)
(non-precedential).

Procedural and substantive unconscionability. — Procedural unconscionability
considers the factual circumstances of a contract's formation. Substantive
unconscionability concerns the legality and fairness of the contract terms themselves.
Peavy v. Skilled Healthcare Group, Inc., 2020-NMSC-010, aff'g No. A-1-CA-35494,
mem. op. (N.M. Ct. App. Oct. 22, 2018) (non-precedential).

Substantive unconscionability of an arbitration agreement. — Under New Mexico
conscionability law, a presumption of unfair and unreasonable one-sidedness arises
when a drafting party excludes its likeliest claims from arbitration, while mandating the
other party arbitrate its likeliest claims. The presumption may be overcome by an
evidentiary showing that justifies the one-sidedness of the arbitration agreement. Peavy
v. Skilled Healthcare Group, Inc., 2020-NMSC-010, aff'g No. A-1-CA-35494, mem. op.
(N.M. Ct. App. Oct. 22, 2018) (non-precedential).

Analysis in determining substantive conscionability of an arbitration agreement.
— When confronted with the substantive conscionability of an arbitration agreement, a
court should first analyze the arbitration agreement on its face to determine the legality
and fairness of the contract terms themselves, and second, if the court determines the
arbitration agreement is facially one-sided, the court should allow the drafting party to
present evidence that justifies the agreement is fair and reasonable, such that
enforcement of the agreement would not be substantively unconscionable. Peavy v.
Skilled Healthcare Group, Inc., 2020-NMSC-010, aff'g No. A-1-CA-35494, mem. op.
(N.M. Ct. App. Oct. 22, 2018) (non-precedential).
Arbitration agreements are substantively unconscionable when they are unfairly
and unreasonably one-sided. — Where the estate of decedent filed a wrongful death
lawsuit against defendant, a skilled nursing facility where decedent was a resident, and
where, in response, defendant filed a motion to compel arbitration, citing an arbitration
agreement that was attendant to decedent's admission agreement to the nursing facility,
and where the arbitration agreement provided an exception stating that the agreement
did not apply to either the facility or the resident in any disputes pertaining to collections,
the district court did not err in denying defendant's motion to compel arbitration because
the arbitration agreement was facially one-sided in that it excluded defendant's likeliest
claim from mandatory arbitration, but required its residents to arbitrate their likeliest
claims, and defendant failed to show that the arbitration agreement's collections
exception was reasonable and fair. Peavy v. Skilled Healthcare Group, Inc., 2020-
NMSC-010, aff'g No. A-1-CA-35494, mem. op. (N.M. Ct. App. Oct. 22, 2018) (non-
precedential).

A moving party should have an opportunity to present evidence that a facially
one-sided provision is fair and reasonable before a court renders a decision
granting or denying a motion to compel arbitration. — In a consumer protection
class action lawsuit against defendant for violations of the Unfair Practices Act and for
unjust enrichment, where plaintiffs alleged that defendant imposed illegal charges when
selling new vehicles and failed to make timely payments on trade-in vehicles, and where
defendant responded to plaintiffs' complaint by filing a motion to compel arbitration,
citing an arbitration clause in the buyer's agreement that plaintiffs signed when
purchasing a vehicle from defendant, and where plaintiffs opposed arbitration on
grounds that the arbitration agreement was substantively unconscionable, and therefore
unenforceable, and where the district court determined that while the arbitration clause
was itself neutral on its face, the damages limitation and time-to-sue provisions were
unfairly and unreasonably one-sided and unconscionable, the district court erred in
denying the motion to compel, because the court should have allowed defendant, as the
drafting party, to present evidence that justifies the agreement is fair and reasonable,
such that enforcement of the agreement would not be substantively unconscionable.
Martinez v. Melloy Bros., Inc., 2026-NMCA-018, cert. denied.

Arbitration agreement was substantively unconscionable. — In a breach of contract
case where plaintiff argued that the arbitration agreement provision of its subcontract
with defendant should not be enforced because the provision was facially one-sided and
thus was substantively unconscionable, and where the district court determined that the
provision was not unconscionable and granted defendant's motion to compel arbitration,
the district court erred in determining that the arbitration agreement was not
substantively unconscionable, because to determine the substantive conscionability of a
contract provision, a court must first analyze the arbitration agreement on its face to
determine the legality and fairness of the contract terms themselves, and if the court
determines the arbitration agreement is facially one-sided, the court should allow the
drafting party to present evidence that the agreement is fair and reasonable, such that
enforcement of the agreement would not be substantively unconscionable, and in this
case, defendant conceded that the arbitration provision was facially one-sided, but
failed to identify any legitimate, neutral reasons for it to exercise exclusive control over
the manner in which any dispute arising from the subcontract was resolved. Contract
provisions that unreasonably benefit one party over another are substantively
unconscionable. Atlas Elec. Constr. Inc. v. Flintco, LLC, 2024-NMCA-046.

Determination of unconscionability of exceptions in arbitration agreement. —
There is no bright-line, fixed, and inflexible rule that excepting from arbitration any
claims most likely to be pursued by the defendant drafter will void the arbitration
agreement as substantively unconscionable because the exception is unreasonably or
unfairly one-sided and against New Mexico public policy. The issue is to be analyzed on
a case-by-case basis based on evidence presented on the issues of unreasonableness,
unfairness, one-sidedness, and public policy. Bargman v. Skilled Healthcare Grp., Inc.,
2013-NMCA-006, 292 P.3d 1, cert. granted, 2012-NMCERT-012.

Where plaintiff, who was a patient in defendant’s inpatient rehabilitation facility, signed
an arbitration agreement that excluded disputes pertaining to collections; plaintiff sued
defendant for damages arising out of the plaintiff’s care at defendant’s facility; the
district court ruled that plaintiff did not have to arbitrate plaintiff’s claims because the
arbitration agreement was substantively unconscionable; and defendant argued that the
collections exclusion was not unreasonable or unfair because collections disputes are
not complex and involve small sums, that it is faster and cheaper for a patient and
defendant to litigate collection claims rather than to arbitrate them, that under the
arbitration agreement, defendant would have to pay the fees for three arbitrators to
arbitrate the sums involved in collections which would not be cost effective and deprive
defendant of a remedy when a patient failed to pay for services rendered, defendant
should be permitted to present evidence tending to show that the collections exclusion
is not unreasonably or unfairly one-sided such that enforcement of the collections
exclusion is substantively unconscionable. Bargman v. Skilled Healthcare Grp., Inc.,
2013-NMCA-006, 292 P.3d 1, cert. granted, 2012-NMCERT-012.

Arbitration provision not substantively unconscionable. — Where plaintiff
purchased two used cars under separate finance contracts which contained provisions
that retained self-help remedies for both parties, and that allowed either party to compel
arbitration of any claim or dispute arising out of the contracts that exceeded $10,000,
the district court erred in determining that the arbitration clause was unenforceable on
the ground that it was substantively unconscionable under New Mexico law, because
the arbitration provision and its carve-outs do not unreasonably benefit one party over
another, and the carve-out provision’s reservation of self-help remedies is irrelevant to
the question of substantive unconscionability because they are private and
nonadjudicatory by their very nature. Dalton v. Santander Consumer USA, Inc., 2016-
NMSC-035, rev’g 2015-NMCA-030, 345 P.3d 1086.

Practical effect of agreement a factor in determining unconscionability. — Where
an arbitration agreement contains provisions that unreasonably benefit one party over
another, whether the one-sidedness is evident on the face of the agreement or whether
its practical effect unreasonably favors one side, the arbitration provision is
substantively unconscionable and unenforceable. Dalton v. Santander Consumer USA,
Inc., 2015-NMCA-030, cert. granted, 2015-NMCERT-003.

Where plaintiff signed vehicle finance contracts that included arbitration agreements
which contained facially neutral small claims court exemptions from arbitration, but
where the practical effect of the exemptions preserved defendant’s access to the courts
to assert its most important claims, such as repossession, sale of the vehicle, and civil
suits for deficiency judgments, while severely limiting plaintiff’s access to the courts for
consumer claims such as fraud and misrepresentation, the exemption provisions were
unfairly and unreasonably one-sided in favor of defendant, and thus render the
agreement to arbitrate substantively unconscionable. Dalton v. Santander Consumer
USA, Inc., 2015-NMCA-030, cert. granted, 2015-NMCERT-003.

Contractual prohibition of class actions or arbitration. — Contractual provision
which prohibited proceeding on a class-wide basis either in litigation or arbitration, as
applied to claims that would be economically inefficient to bring on an individual basis, is
contrary to the fundamental public policy of New Mexico to provide a forum for the
resolution of all consumer claims and is unenforceable in New Mexico. Fiser v. Dell
Computer Corp., 2008-NMSC-046, 144 N.M. 464, 188 P.3d 1215.

Arbitration agreement was not unconscionable. — Where a title loan agreement
contained an arbitration provision which provided that all claims and disputes were
subject to arbitration at the request of either party, except the lender’s self-help or
judicial remedies, including repossession or foreclosure, and that in the event of a
default, the lender could exercise its rights in court and the debtor could not require the
lender’s action be arbitrated, the arbitration provision was substantively unconscionable
and unenforceable. Rivera v. American Gen. Fin. Servs., Inc., 2010-NMCA-046, 148
N.M. 784, 242 P.3d 351, rev'd, 2011-NMSC-033, 150 N.M. 398, 255 P.3d 803.

Where a title loan agreement contained an arbitration provision which provided that all
claims and disputes were subject to arbitration at the request of either party except the
lender’s self-help or judicial remedies, including repossession or foreclosure with
respect to the vehicle that secured the loan, and that in the event of a default, the lender
could exercise any other rights it had at law or equity or under the loan note or any
instrument securing the loan note, including suing the borrower for amounts owed or
repossessing any property given as security, the arbitration provision was not
substantively unconscionable because the arbitration provision allowed the borrower to
compel arbitration of disputes about the loan note itself and restored to the lender its
statutory protections as a secured creditor or procedurally unconscionable as a contract
of adhesion because there was no evidence that the lender had a monopoly on title
loans in New Mexico or that the borrower would not be able to get a title loan under
different terms through a different lender. Rivera v. American Gen. Fin. Servs., Inc.,
2010-NMCA-046, 148 N.M. 784, 242 P.3d 351, rev'd, 2011-NMSC-033, 150 N.M. 398,
259 P.3d 803.
Arbitrability to be decided by the district court unless parties agree otherwise. —
The general rule is that the arbitrability of a particular dispute is a threshold issue to be
decided by the district court unless there is clear and unmistakable evidence that the
parties decided otherwise under the terms of their arbitration agreement; a court shall
order the parties to arbitrate if it finds that there is an enforceable agreement to do so.
Juarez v. THI of New Mexico at Sunset Villa, 2022-NMCA-056.

A delegation clause challenge. — A challenge to a delegation clause will receive
judicial review when the delegation clause itself is specifically challenged on such
grounds as exist at law or in equity for the revocation of any contract. A sufficiently
specific challenge is one that discusses the language or the application and
enforcement of the delegation clause. Sanchez v. United Debt Counselors, LLC, 2024-
NMSC-026, rev'g A-1-CA-40164, mem. op. (N.M. Ct. App. Aug. 17, 2022)
(nonprecedential).

Plaintiff challenged the delegation clause with sufficient specificity. — Where
plaintiff filed a class action complaint against defendant for damages for alleged
violations of the New Mexico Unfair Practices Act (UPA), 57-12-1 to 57-12-26 NMSA
1978, and where defendant filed a motion to compel arbitration, citing an arbitration
clause in its contract with plaintiff, and where the district court granted defendant's
motion to compel arbitration, but declined to rule on whether the waiver of attorney's
fees renders the arbitration agreement unconscionable on the basis that the delegation
clause gives the arbitrator the authority to decide that issue or whether the delegation
clause itself is unconscionable, the district court erred in granting defendant's motion to
compel arbitration, because plaintiff challenged the delegation clause with sufficient
specificity, claiming that the delegation clause stripped her of an award of attorney's
fees and costs for successfully litigating threshold issues, in violation of the UPA, and
therefore it was for the district court in the first instance to determine whether the
delegation clause was valid and enforceable. Sanchez v. United Debt Counselors, LLC,
2024-NMSC-026, rev'g A-1-CA-40164, mem. op. (N.M. Ct. App. Aug. 17, 2022)
(nonprecedential).

Delegation clause presented clear and unmistakable evidence the parties
intended to have an arbitrator decide the threshold issue of arbitrability. — Where
plaintiff was admitted to a care facility for rehabilitation following knee replacement
surgery, and where, as a condition of her admission, signed an arbitration agreement,
and where, approximately seven months after her admission, plaintiff filed a complaint
against defendant alleging claims of medical negligence and negligent hiring, training,
supervision, and retention of employees, and where defendant moved to compel
arbitration, asserting that there was no dispute that plaintiff signed the agreement for
dispute resolution, that defendant was entitled to enforce the agreement, that the
agreement was a valid, enforceable agreement supported by consideration, and that the
delegation clause clearly required any questions about arbitrability be submitted to the
arbitrator, the district court erred in denying defendant's motion to compel arbitration,
because there was a valid contract, supported by consideration, to arbitrate between
the parties, and the delegation clause clearly and unmistakably delegated questions of
arbitrability to the arbitrator. Juarez v. THI of New Mexico at Sunset Villa, 2022-NMCA-
056.

Threshold question of arbitrability. — Where plaintiff, the personal representative of
the wrongful death estate of decedent, brought a wrongful death action against
defendants, a Rio Rancho skilled nursing facility and the management/employment
entities for the nursing facility, following decedent's death while in defendants' care, and
where the district court granted partial summary judgment to plaintiff based upon its
rejection of defendants' affirmative defense regarding arbitration, which asserted that
the district court lacked subject matter jurisdiction as a result of an enforceable
arbitration agreement, and denied defendants' motion to compel arbitration, the district
court did not err in refusing to delegate the interpretation of the arbitration agreement to
the arbitrator, because the arbitration agreement in this case failed to specify that
distinct threshold questions of arbitrability should be resolved by an arbitrator.
Arbitrability of a particular dispute is a threshold issue to be decided by the district court
unless there is clear and unmistakable evidence that the parties decided otherwise
under the terms of the arbitration agreement. Hunt v. Rio at Rust Centre, 2021-NMCA-
043.

Arbitration agreement was procedurally unconscionable. — Where plaintiff, the
personal representative of the wrongful death estate of decedent, brought a wrongful
death action against defendants, a Rio Rancho skilled nursing facility and the
management/employment entities for the nursing facility, following decedent's death
while in defendants' care, and where the district court granted partial summary judgment
to plaintiff based upon its rejection of defendants' affirmative defense regarding
arbitration, which asserted that the district court lacked subject matter jurisdiction as a
result of an enforceable arbitration agreement, and denied defendants' motion to
compel arbitration, the district court did not err in denying defendants' motion to compel
arbitration, because the manner in which arbitration was presented to decedent's
attorney in fact was procedurally unconscionable. The record demonstrates that
defendants had vastly superior bargaining power compared to decedent's attorney in
fact and the arbitration agreement did not give decedent's attorney in fact any authority
to negotiate or modify the terms of the agreement; the inequality was so gross that the
weaker party's choice was rendered effectively non-existent. Hunt v. Rio at Rust
Centre, 2021-NMCA-043.

The district court did not err in refusing to submit the issue of arbitrability to
arbitration. — In a wrongful death and negligence action arising from resident's stay at
a hospital run by defendants, where resident's son signed an agreement on resident's
behalf in connection with resident's admission to defendants' hospital, and where, in
response to plaintiff's suit for wrongful death and negligence, defendants moved to
compel arbitration, and where, after a hearing on the motion, the district court entered
an order denying defendants' motion to compel arbitration, the district court did not err in
refusing to submit the issue of arbitrability to arbitration, because there was no clear and
unmistakable evidence that the parties agreed to delegate the issue of arbitrability.
Arbitrability of a particular dispute is a threshold issue to be decided by the district court
unless there is clear and unmistakable evidence that the parties decided otherwise
under the terms of the arbitration agreement. Lopez v. Transitional Hospitals of N.M.,
2023-NMCA-058.

The district court did not err in denying defendants' motion to compel arbitration.
— In a wrongful death and negligence action arising from resident's stay at a hospital
run by defendants, where resident's son signed an agreement on resident's behalf in
connection with resident's admission to defendants' hospital, and where, in response to
plaintiff's suit for wrongful death and negligence, defendants moved to compel
arbitration, and where, after a hearing on the motion, the district court entered an order
denying defendants' motion to compel arbitration, concluding that resident's son lacked
authority to sign the agreement on resident's behalf, the district court did not err in
denying defendants' motion to compel arbitration, because although resident executed a
health-care directive listing her son as resident's health-care agent, the health-care
directive stated that it took effect upon resident's incapacity, and defendants failed to
meet their burden of showing that resident lacked capacity when her son signed the
admission agreement, and thus failed in their burden of showing an agency relationship
permitting resident's son to enter into arbitration on behalf of resident. Lopez v.
Transitional Hospitals of N.M., 2023-NMCA-058.

Arbitration agreement was supported by consideration. — Where a title loan
agreement contained an arbitration provision which provided that all claims and
disputes were subject to arbitration at the request of either party except the lender’s
judicial and extra-judicial remedies with respect to collateral; and the agreement did not
allow the lender to alter the agreement to arbitrate claims that the lender brings against
the borrower, the arbitration agreement was supported by consideration. Rivera v.
American Gen. Fin. Servs., Inc., 2010-NMCA-046, 148 N.M. 784, 242 P.3d 351, rev'd,
2011-NMSC-033, 150 N.M. 398, 259 P.3d 803.

Unconscionable arbitration contract. — The provisions of a small loan company’s
arbitration form that limited a borrower to mandatory arbitration as a forum to settle all
disputes whatsoever, while reserving for the lender the exclusive option of access to the
courts for all remedies the lender was most likely to pursue against a borrower, are
substantively unconscionable and unenforceable. Cordova v. World Fin. Corp. of N.M.,
2009-NMSC-021, 146 N.M. 256, 208 P.3d 901.

Arbitration agreement was substantively unconscionable. — Where a nursing
home admission agreement contained an arbitration agreement which provided that all
disputes between the parties were subject to arbitration, but excepted guardianship
proceedings, collection, and eviction actions initiated by the nursing home and disputes
involving less than $2,500 from binding arbitration and provided that the excepted
proceedings and actions were subject to litigation in court; and the most likely claims a
nursing home would have against a resident relate to the collection of fees through
guardianship proceedings and collection actions and the termination of services through
eviction, the arbitration agreement was substantively unconscionable and
unenforceable because the agreement exempted from arbitration the most likely claims
that the nursing home would have against a resident, while subjecting the resident’s
most likely claims to arbitration. Figueroa v. THI of New Mexico, 2013-NMCA-077, cert.
denied, 2012-NMCERT-010.

Savings clause in unconscionable arbitration agreement could not be applied. —
Where a nursing home admission agreement contained an arbitration agreement that
was unconscionable because it exempted from arbitration the most likely claims that the
nursing home would have against a resident, while subjecting the resident’s most likely
claims to arbitration, the exemption of certain claims from arbitration was so central to
the agreement that, irrespective of the savings clause in the agreement, the exemption
clause was incapable of separation from the agreement to arbitrate and severing the
exemption clause and requiring the resident to arbitrate a claim that was unlikely to be
litigated by the nursing home would perpetuate the unfairness for which the equitable
unconscionablity defense is imposed. Figueroa v. THI of N.M., 2013-NMCA-077, cert.
denied, 2012-NMCERT-010.

Where the terms of an arbitration agreement that plaintiff signed upon plaintiff’s
admission to defendants’ nursing home required the parties to arbitrate all disputes
associated with the agreement and the relationship created by the admission
agreement, except disputes pertaining to collections or discharge of residents, the
arbitration agreement was substantively unconscionable and unenforceable because
the arbitration agreement permitted the nursing home to litigate its most likely and
beneficial claims while excluding access to the courts for claims regarding negligent
care, the most likely claims to be pursued by a resident. Ruppelt v. Laurel Healthcare
Providers, LLC, 2013-NMCA-014, 293 P.3d 902, cert. denied, 2012-NMCERT-012.

Federal Artibration Act not applicable to unconscionable arbitration contract. —
The court’s ruling that the provisions of a small loan company’s arbitration form that
limited a borrower to mandatory arbitration as a forum to settle all disputes whatsoever,
while reserving for the lender the exclusive option of access to the courts for all
remedies the lender was most likely to pursue against a borrower are substantively
unconscionable and unenforceable is not inconsistent with the dictates of the Federal
Arbitration Act, 9 U.S.C. § 2. Cordova v. World Fin. Corp. of N.M., 2009-NMSC-021,
146 N.M. 256, 208 P.3d 901.

Unconscionability analysis does not violate the Federal Arbitration Act. — The
unconscionability analysis of arbitration agreements does not violate the Federal
Arbitration Act, 9 U.S.C. §§ 1-6, because under New Mexico law, the unconscionability
analysis is applied on an equal basis for all contracts to determine whether the terms of
a contract are so unfairly unequal as to prevent enforcement of the contract. Figueroa v.
THI of N.M., 2013-NMCA-077, cert. denied, 2012-NMCERT-010.

Arbitration agreement could not be enforced where Federal Arbitration Act
exemption applied. — Where defendant employed plaintiff as a commercial truck
driver, and where, during the hiring process, plaintiff signed an arbitration agreement
agreeing to arbitrate claims for wages, benefits or other compensation due and
agreeing to waive the right to bring a class action, and where, a year later, plaintiff filed
a class-action complaint in the district court against defendant for violations of the New
Mexico Minimum Wage Act, 50-4-19 to 50-4-30 NMSA 1978, and where defendant filed
a motion to dismiss or stay and compel arbitration, the district court did not err in
denying defendant's motion, because the Federal Arbitration Act (FAA), 9 U.S.C. § 1,
exempts certain contracts from mandatory enforcement, including contracts of
employment of transportation workers engaged in interstate commerce, and the record
in this case included evidence that the parties intended for multiple documents,
including the arbitration agreement, to form a contract of employment and plaintiff
established that he belonged to a class of transportation workers engaged in interstate
commerce. The arbitration agreement, therefore, cannot be enforced under the FAA.
Bankert v. 10 Roads Express, LLC, 2025-NMCA-014.

Where the membership of a member of the National Association of Securities
Dealers has lapsed, the lapsed member cannot compel arbitration with a customer
under the NASD rules after the lapse of the member’s NASD membership. Medina v.
Holguin, 2008-NMCA-161, 145 N.M. 303, 197 P.3d 1085.

Terms of arbitration agreement delivered with shipment of goods. — A customer
who purchases goods over the telephone or the internet; who is informed of the terms
and conditions of the sale, including an arbitration agreement when the product is
delivered; and who is given a specific number of days in which to return the product, is
deemed to have accepted the terms and conditions, including the arbitration agreement,
unless the product is returned within the specified time period. Fiser v. Dell Computer
Corp., 2007-NMCA-087, 142 N.M. 331 165 P.3d 328, rev'd on other grounds, 2008-
NMSC-046, 144 N.M. 464, 188 P.3d 1215.

Arbitration agreement was illusory and lacked consideration. — An employer’s
arbitration agreement which permitted the employer to unilaterally amend or revoke the
arbitration agreement at any time after a claim had accrued, but before an arbitration
proceeding had been initiated, was invalid because the employer’s promise to arbitrate
was illusory and lacked consideration. Flemma v. Halliburton Energy Servs. Inc., 2013-
NMSC-022, rev’g 2012-NMCA-009, 269 P.3d 931.

Arbitration agreement valid under Texas law that is unconscionable under New
Mexico law is not enforceable in New Mexico under Texas law. — Where an
arbitration agreement between plaintiff and defendant was formed while plaintiff was
working for defendant in Texas; the arbitration agreement was enforceable under Texas
law; while plaintiff was working for defendant in New Mexico, defendant terminated
plaintiff; and the arbitration agreement permitted defendant to unilaterally amend or
revoke the agreement at any time after a claim had accrued, but before an arbitration
proceeding had been initiated, the arbitration agreement was not enforceable in New
Mexico under Texas law because, under New Mexico law, the arbitration agreement
was unconscionable and enforcing the arbitration agreement under Texas law would
violate New Mexico public policy. Flemma v. Halliburton Energy Servs. Inc., 2013-
NMSC-022, rev’g 2012-NMCA-009, 269 P.3d 931.
Arbitration agreement was not illusory. — Where the defendant’s dispute resolution
program included binding arbitration of all employment-related disputes; the program
provided that defendant reserved the right to amend or terminate the program at any
time by giving at least ten days notice to current employees and that no amendment or
termination would apply to a dispute for which a proceeding had been initiated;
defendant fired plaintiff; and plaintiff sued defendant for wrongful retaliatory discharge
and claimed that the arbitration agreement was not binding because it was illusory, the
arbitration agreement was not illusory because defendant’s right to amend any aspect
of the dispute resolution program ended the moment plaintiff was fired, because
plaintiff’s status as a continuing employee was severed at that time. Flemma v.
Halliburton Energy Services, Inc., 2012-NMCA-009, 269 P.3d 931, cert. granted, 2012-
NMCERT-001.

No procedural unconscionability. — Where the resident was admitted to a resident
health care facility; the resident designated an agent to complete the admission
paperwork; the admission agreement included a form that required the resident to either
reject or accept arbitration as the method of resolving disputes; the director of the facility
reviewed the admission agreement with the agent, instructed the agent to read the
dispute resolution form, and explained to the agent that if the agent wanted to reject
arbitration, the agent had to mark and initial the appropriate box; the dispute resolution
form stated that a resident’s agreement to arbitrate was not a condition to admission
and explained the consequences of choosing arbitration; the agent read the admission
agreement at the facility and at the agent’s home; and the agent chose arbitration, the
circumstances surrounding the formation of the arbitration agreement did not render the
agreement void for procedural unconscionable. Barron v. Evangelical Lutheran Good
Samaritan Soc'y, 2011-NMCA-094, 150 N.M. 669, 265 P.3d 720.

No substantative unconscionability. — An arbitration agreement that requires a
buyer to arbitrate its claims against the seller, but does not require the seller to arbitrate
its claims against the buyer, is not substantively unconscionable where the parties have
provided each other with consideration beyond the promise to arbitrate. Fiser v. Dell
Computer Corp., 2007-NMCA-087, 142 N.M. 331 165 P.3d 328, rev'd on other grounds,
2008-NMSC-046, 144 N.M. 464, 188 P.3d 1215.

Arbitration provision was substantively unconscionable. — Where an arbitration
provision in a loan agreement provided that the arbitrator’s decision was final and
binding, and that if the claim exceeded $100,000 or granted or denied injunctive relief,
either party could appeal the award to a three-arbitrator panel; and the practical effect of
the appeals provision was that small claims, over which the lender was unlikely to
initiate proceedings, were required to be arbitrated, the lender was more likely to appeal
claims that met the threshold for appealable claims, and the borrower’s claims are more
likely to fall below the threshold and be subject to arbitration only, the appeals provision
was substantively unconscionable and unenforceable because it constituted an "escape
hatch" clause that benefited the lender more than the borrower. Clay v. N.M. Title
Loans, Inc., 2012-NMCA-102, 288 P.3d 888, cert. denied, 2012-NMCERT-009.
Agreement to arbitrate legal malpractice requires client’s informed consent. —
Where an arbitration provision in an attorney-client contingency fee agreement provided
that any dispute be submitted to arbitration, the arbitration provision was unenforceable
absent the attorney informing his client that arbitration will constitute a waiver of
important rights, including the right to a jury trial, because if an attorney is going to
require his client, within the context of their relationship of trust, to waive the right to a
jury trial for a future malpractice dispute, such a waiver should be made knowingly with
the client’s informed consent. For the purposes of obtaining informed consent, adequate
communication will ordinarily include disclosure of the facts and circumstances giving
rise to the situation, any explanation reasonably necessary to inform the client or other
person of the material advantages and disadvantages of the proposed course of
conduct and a discussion of the client’s or other person’s options and alternatives.
Castillo v. Arrieta, 2016-NMCA-040, cert. denied.

An arbitration clause is not unconscionable because it precludes class actions. Fiser
v. Dell Computer Corp., 2007-NMCA-087, 142 N.M. 331 165 P.3d 328, cert. granted,
2007-NMCERT-006, rev'd, 2008-NMSC-046, 144 N.M. 464, 188 P.3d 1215.

Denial of trial by jury. — A purchaser who is compelled to arbitrate based not on a
statute, but on an arbitration agreement that is voluntarily entered into by the parties, is
not denied the constitutional right to trial by jury. Fiser v. Dell Computer Corp., 2007-
NMCA-087, 142 N.M. 331 165 P.3d 328, rev'd on other grounds, 2008-NMSC-046, 144
N.M. 464, 188 P.3d 1215.

Legally enforceable contract required. – Under either the Federal Arbitration Act, 9
U.S.C. §§ 1-16, or the New Mexico Uniform Arbitration Act, a legally enforceable
contract is a prerequisite to arbitration; without such a contract, parties will not be forced
to arbitrate. Heye v. Am. Golf Corp., Inc., 2003-NMCA-138, 134 N.M. 558, 80 P.3d 495.

Authority of agent to agree to arbitration. — Where the resident, who was mentally
competent, alert and oriented, was admitted to a resident health care facility; the
resident declined to complete the admission paperwork and told the director of the
facility that the principal’s grandchild would complete the paperwork; the grandchild told
the director that the grandchild was assuming responsibility for the resident’s care; the
paperwork included a form that required the resident to either reject or accept arbitration
as the method of resolving disputes; and the grandchild completed the paperwork and
accepted arbitration, the grandchild had actual authority, which was not limited by the
resident, and apparent authority to decide whether to reject or accept the arbitration
clause in the admission agreement that was signed as part of the admission process
and the grandchild’s decision to accept arbitration was binding on the principal. Barron
v. Evangelical Lutheran Good Samaritan Soc'y, 2011-NMCA-094, 150 N.M. 669, 265
P.3d 720.

Under Federal Arbitration Act, whether valid contract to arbitrate exists is
question of state contract law. DeArmond v. Halliburton Energy Servs., Inc., 2003-
NMCA-148, 134 N.M. 630, 81 P.3d 573, cert. denied, 2003-NMCERT-003, 135 N.M. 51,
84 P.3d 668.

Determination of existence of arbitration agreement. — A court may not delegate to
the arbitrator the court's obligation to decide the threshold issue of the existence of a
binding arbitration agreement. Edward Family Ltd. P'ship v. Brown, 2006-NMCA-083,
140 N.M. 104, 140 P.3d 525, cert. denied, 2006-NMCERT-005, 139 N.M. 567, 136 P.3d
568.

Burden of proof of unconscionability. — Unconscionability is an affirmative contract
defense and the party alleging unconscionability has the burden to prove that the
contract is unenforceable on that basis. Strausberg v. Laurel Healthcare Providers, LLC,
2013-NMSC-032, rev’g 2012-NMCA-006, 269 P.3d 914.

Burdens of proof. — The party seeking to compel arbitration bears the initial burden to
prove that a valid contract exists, by generally showing that the contract is factually
supported by an offer, an acceptance, consideration and mutual assent. Once the party
who seeks to compel arbitration has satisfied the initial burden of proving the formation
of a valid contract, the burden shifts to the party opposing arbitration to demonstrate
that an affirmative defense, such as unconscionability, renders the contract
unenforceable. Strausberg v. Laurel Healthcare Providers, LLC, 2013-NMSC-032, rev’g
2012-NMCA-006, 269 P.3d 914.

Burden of proof of validity. — When a nursing home relies upon an arbitration
agreement signed by a patient as a condition for admission to the nursing home, and
the patient contends that the arbitration agreement is unconscionable, the nursing home
has the burden of proving that the arbitration agreement is not unconscionable.
Strausberg v. Laurel Healthcare Providers, LLC, 2012-NMCA-006, 269 P.3d 914, cert.
granted, 2012-NMCERT-001, rev’d, 2013-NMSC-032.

District court did not shift burden of proving unconscionability. — The proponent
of the affirmative defense of unconscionability bears the burden of proof, and where a
party fails to adequately rebut an argument that an exemption from arbitration provision
is unreasonably one-sided, the district court’s agreement with the argument does not
impermissibly shift the burden of proof. Dalton v. Santander Consumer USA, Inc., 2015-
NMCA-030, rev’d on other grounds, 2016-NMSA-035.

Rule preempted by the Federal Arbitration Act. — The rule that a nursing home
seeking to compel arbitration has the burden of proving that the arbitration agreement is
not unconscionable is preempted by the Federal Arbitration Act, 9 U.S.C. §§ 1-16,
because the rule singles out arbitration agreements for special treatment by presuming
that all nursing home arbitration agreements are unconscionable. Strausberg v. Laurel
Healthcare Providers, LLC, 2013-NMSC-032, rev’g 2012-NMCA-006, 269 P.3d 914.

The Federal Arbitration Act does not preempt the application of New Mexico’s
unconscionability doctrine to arbitration exemptions. — The New Mexico supreme
court has consistently upheld the application of New Mexico’s generally applicable
unconscionability doctrine to one-sided arbitration agreements, consistent with the
savings clause of the Federal Arbitration Act, 9 U.S.C. § 2, which permits state courts to
invalidate agreements to arbitrate via generally applicable contract defenses, such as
fraud, duress or unconscionability, but not by defenses that apply only to arbitration or
that derive their meaning from the fact that an agreement to arbitrate is at issue. Dalton
v. Santander Consumer USA, Inc., rev’d on other grounds, 2016-NMSA-035.

The employer failed to prove the elements of acceptance and mutual assent to an
arbitration agreement contained in materials mailed to the employee's home which
provided that continued employment would constitute acceptance of the agreement
where there was no evidence that the employee actually read the agreement and the
employer did not provide an agreement or acknowledgment form for the employee to
sign; the court would not equate presumed receipt with actual knowledge. DeArmond v.
Halliburton Energy Servs., Inc., 2003-NMCA-148, 134 N.M. 630, 81 P.3d 573, cert.
denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Arbitration agreement to be interpreted by rules of contract law. — A valid
arbitration contract must possess mutuality of obligation; mutuality means both sides
must provide consideration. Heye v. Am. Golf Corp., Inc., 2003-NMCA-138, 134 N.M.
558, 80 P.3d 495.

Where an employment arbitration agreement was a preprinted form contract and there
was no suggestion that the employer sought or received any input from the employee in
connection with the drafting of the language, the agreement would be construed against
the employer-drafter where it contained conflicting provisions. Heye v. Am. Golf Corp.,
Inc., 2003-NMCA-138, 134 N.M. 558, 80 P.3d 495.

An employment arbitration agreement which contained conflicting provisions as to
whether it was binding on the employer, construed against the employer, gave the
employer unfettered discretion to terminate arbitration at any time; the promise,
therefore, was illusory and did not provide the consideration necessary to enforce the
arbitration agreement. Heye v. Am. Golf Corp., Inc., 2003-NMCA-138, 134 N.M. 558, 80
P.3d 495.

The terms of the arbitration agreement are to be interpreted by the rules of contract law.
Christmas v. Cimarron Realty Co., 1982-NMSC-079, 98 N.M. 330, 648 P.2d 788.

Arbitrator must initially determine scope of arbitration. — Where an employee
agreed to arbitrate the employee’s grievances; the arbitration agreement provided that
the arbitration would resolve all matters raised in the employee’s complaint and that the
arbitrator had exclusive authority to resolve disputes relating to the scope of the
arbitration agreement; there was a dispute between the employer and the employee as
to the scope of the arbitration; the employee agreed with the employer to narrow the
scope of the arbitration, while unilaterally reserving the right to litigate other issues; the
employee did not raise the scope-of-arbitration issues with the arbitrator; the arbitrator
ruled in favor of the employee; and the employee subsequently filed a lawsuit in which
the employee alleged more expansive claims arising out of the same subject matter as
the arbitration agreement, the employee was obligated to obtain a scope-of-arbitration
ruling first from the arbitrator, and because the employee never obtained a ruling, the
district court correctly dismissed the lawsuit. Home v. Los Alamos Nat’l Sec., L.L.C.,
2013-NMSC-004, 296 P.3d 478.

Unforeseeable conduct is not within the scope of an arbitration provision. —
Claims based on conduct that is unforeseeable to the parties at the time of entering into
an agreement, including an arbitration provision, are not within the scope of the
arbitration provision as a matter of law. Clay v. N.M. Title Loans, Inc., 2012-NMCA-102,
288 P.3d 888, cert. denied, 2012-NMCERT-009.

Tort claim was not within scope of arbitration provision in loan agreement. —
Where borrower signed a loan agreement with lender and used borrower’s truck to
secure the loan; the arbitration clause in the loan agreement required arbitration of any
claim between borrower and lender that arose from or related to the agreement or the
borrower’s truck; borrower failed to repay the loan; when borrower resisted the attempt
by employees of a repossession business to repossess the truck for lender, one of the
employees shot borrower; and borrower sued lender alleging tort claims arising out of
the shooting, borrower’s tort claims were not within the scope of the arbitration provision
because illegal or negligent conduct during repossession was outside the scope of the
loan agreement and the arbitration provision. Clay v. N.M. Title Loans, Inc., 2012-
NMCA-102, 288 P.3d 888, cert. denied, 2012-NMCERT-009.

Arbitration agreement valid under Texas contract law was enforceable in New
Mexico. — Where, during the course of plaintiff’s twenty-six years of employment with
defendant, defendant on four separate mailings notified plaintiff that continued
employment with defendant constituted plaintiff’s acceptance of the terms of
defendant’s dispute resolution program, which included binding arbitration of all
employment-related disputes; when plaintiff was assigned to work for defendant’s
international organization, plaintiff signed an agreement that plaintiff would remain
employed by defendant and the terms of defendant’s dispute resolution program would
apply to plaintiff; while plaintiff was working for defendant in New Mexico, plaintiff sued
defendant for wrongful and retaliatory discharge; under Texas law, plaintiff was
presumed to have received the mailings and plaintiff’s continued employment with
defendant constituted acceptance of defendant’s dispute resolution program; under
New Mexico law, an employer is required to prove that an employee had actual notice
of an offer and actual acknowledgement that continued employment constituted
acceptance of the offer; and the only difference between Texas and New Mexico law
was the evidentiary requirements of contract formation, the mere difference between
Texas and New Mexico in terms of the evidentiary requirements of contract formation
were insufficient to overcome the place-of-formation rule on public policy grounds, the
arbitration agreement was enforceable under Texas law, and plaintiff was bound to
arbitration. Flemma v. Halliburton Energy Services, Inc., 2012-NMCA-009, 269 P.3d
931, cert. granted, 2012-NMCERT-001.
Test to determine whether a court may designate an arbitration provider. — If the
parties’ designation of a particular arbitration provider was integral to the parties’
agreement to arbitrate, then the court cannot appoint a substitute arbitrator if the
designated arbitrator is not available. If the parties’ designation of an arbitration provider
was an ancillary logistical concern, a court can appoint a substitute provider. An
arbitration provider is an ancillary logistical concern where the arbitration provisions do
not specifically designate a provider or give the parties a choice of providers. The
express designation of a single arbitration provider; the designation of the rules of a
specific arbitration provider; and mandatory, as opposed to permissive, contractual
language are factors that indicate that a particular provider is integral to the parties’
agreement to arbitrate. Rivera v. Am. Gen. Fin. Servs., Inc., 2011-NMSC-033, 150 N.M.
398, 259 P.3d 803, rev'g 2010-NMCA-046, 148 N.M. 784, 242 P.3d 351.

Arbitration agreement was unenforceable. — Where the arbitration provision in a title
loan agreement named the National Arbitration Forum exclusively throughout the
provisions of the agreement, provided that the arbitration would be conducted under the
rules and procedures of the National Arbitration Forum, required the parties to use the
forms prescribed by the National Arbitration Forum, required the National Arbitration
Forum to provide a list of potential arbitrators, provided that the National Arbitration
Forum would determine the costs each party would pay; and the National Arbitration
Forum was precluded from arbitrating consumer disputes, the arbitration provision was
unenforceable because arbitration before the National Arbitration Forum was integral to
the agreement to arbitrate, precluding a court from appointing a substitute arbitrator.
Rivera v. Am. Gen. Fin. Servs., Inc., 2011-NMSC-033, 150 N.M. 398, 259 P.3d 803,
rev'g 2010-NMCA-046, 148 N.M. 784, 242 P.3d 351.

Agreement defines scope of jurisdiction of arbitration. — Parties contracting to
resolve disputes by arbitration are bound by their agreement. The terms of the
agreement define the scope of the jurisdiction, conditions, limitations and restrictions on
the matters to be arbitrated. Christmas v. Cimarron Realty Co., 1982-NMSC-079, 98
N.M. 330, 648 P.2d 788.

Claim not within the scope of arbitration provision. — Where the focus of the
arbitration provision contained in a warranty package for new homes was on the
warranty against defects and the repair and replacement of covered defects in the new
homes, and even though the arbitration provision included claims of breach of contract
and negligent or intentional misrepresentation, the arbitration provision did not apply to
representations made to prospective purchasers that the land adjacent to the new
homes would remain open space. Campos v. Homes by Joe Boyden, LLC, 2006-
NMCA-086, 140 N.M. 122, 140 P.3d 543, cert. denied, 2006-NMCERT-007, 140 N.M.
279, 142 P.3d 360.

Waiver of exclusive authority of arbitrator to decide arbitrability. — Where the
terms of an arbitration agreement that plaintiff signed upon plaintiff’s admission to
defendants’ nursing home required the parties to arbitrate all disputes associated with
the agreement and the relationship created by the admission agreement, except
disputes pertaining to collections or discharge of residents; plaintiff challenged the
enforceability of the entire arbitration agreement; and defendants voluntarily addressed
the enforceability of the arbitration agreement in district court and never suggested that
the district court did not have authority to address the issue, defendants waived their
argument that the arbitrator had exclusive authority to decide arbitrability. Ruppelt v.
Laurel Healthcare Providers, LLC, 2013-NMCA-014, 293 P.3d 902, cert. denied, 2012-
NMCERT-012.

Where arbitration agreement was not supported by consideration, no contract was
formed. Piano v. Premier Distrib. Co., 2005-NMCA-018, 137 N.M. 57, 107 P.3d 11, cert.
denied, 2005-NMCERT-003, 137 N.M. 290, 110 P.3d 73.

Continued at-will employment is an illusory promise that cannot be consideration for
an arbitration agreement. Piano v. Premier Distrib. Co., 2005-NMCA-018, 137 N.M. 57,
107 P.3d 11, cert. denied, 2005-NMCERT-003, 137 N.M. 290, 110 P.3d 73.

Arbitration agreement will be given broad interpretation. — When the parties agree
to arbitrate any potential claims or disputes arising out of their relationships by contract
or otherwise, the arbitration agreement will be given broad interpretation, unless the
parties themselves limit arbitration to specific areas or matters. Barring such limiting
language, the courts only decide the threshold question of whether there is an
agreement to arbitrate. K.L. House Constr. Co. v. City of Albuquerque, 1978-NMSC-
025, 91 N.M. 492, 576 P.2d 752.

Ability to unilaterally change agreement. — One party’s promise to arbitrate is
illusory where it retained the ability to unilaterally change the arbitration agreement.
Piano v. Premier Distrib. Co., 2005-NMCA-018, 137 N.M. 57, 107 P.3d 11, cert. denied,
2005-NMCERT-003, 137 N.M. 290, 110 P.3d 73.

Forum for resolution of disputed interpretation. — Where a complaint for
declaratory judgment raises questions of law arising from the disputed interpretation of
an arbitration contract, the proper forum for resolution of such questions is the trial
court. Guaranty Nat'l Ins. Co. v. Valdez, 1988-NMSC-090, 107 N.M. 764, 764 P.2d
1322.

Arbitration not binding. — To the extent that, pursuant to contract, arbitration is not
binding, there exists no arbitration agreement to be bound by an arbitrator's award, and,
therefore, a party with a contractual right to an appeal de novo, as well as an aggrieved
party under Section 66-5-303 NMSA 1978, the de novo trial provision of the uninsured
motorist insurance law, has a right to seek a de novo trial in district court. Allstate Ins.
Co. v. Perea, 2000-NMCA-070, 129 N.M. 364, 8 P.3d 166, overruled by Padilla v. State
Farm Mut. Auto. Ins. Co., 2003-NMSC-011, 133 N.M. 661, 68 P.3d 901.

When trial court determines force of disputed contract. — When a petition is filed to
compel arbitration pursuant to a contract's arbitration clause and the responding party
denies the existence or validity of the contract, the trial court must determine whether
the contract is still in force to compel the requested arbitration. Gonzales v. United S.W.
Nat'l Bank, 1979-NMSC-086, 93 N.M. 522, 602 P.2d 619.

Arbitration provision providing for limited de novo appeal substantively
unconscionable. — The limited de novo appeal provision in an insurance contract,
providing for mandatory arbitration which would be binding on both parties for any
award of damages not exceeding the limits of the Mandatory Financial Responsibility
Act but providing for de novo appeal by either party of awards over that amount, violates
public policy and is void as substantively unconscionable. Padilla v. State Farm Mut.
Auto. Ins. Co., 2003-NMSC-011, 133 N.M. 661, 68 P.3d 901.

Question of arbitrability is for the court to decide. — Where plaintiff filed a class
action to challenge the validity of an online loan agreement; the loan agreement
contained an arbitration provision in which the parties delegated questions of
arbitrability to the arbitrator; plaintiff did not specifically challenge the validity of the
delegation clause in the complaint; and when defendants filed motions to compel
arbitration, plaintiff raised specific challenges to the validity of the delegation clause that
were distinct from the challenges to the loan agreement, the court, not the arbitrator,
had jurisdiction to determine the question of the validity of the arbitration provision. Felts
v. CLK Mgmt., Inc., 2011-NMCA-062, 149 N.M. 681, 254 P.3d 124, cert. granted, 2011-
NMCERT-006, 150 N.M. 764, 266 P.3d 633.

Court had jurisdiction to determine the scope of arbitration provision. — Where
an arbitration provision in a loan agreement contained a "delegation provision" which
defined an arbitrable "claim" to include disputes about the validity, enforceability,
arbitrability, or scope of the arbitration provision, and the borrower specifically
challenged the delegation provision by arguing that there was fraud in the inducement
based on an alleged misrepresentation by the lender of the neutrality of the two
organizations identified to administer the arbitration proceedings, and the fact that both
organizations had stopped administrating arbitration of collections and that borrower
justifiably relied on the representation of neutrality, the court had jurisdiction to
determine the scope of the arbitration provision. Clay v. N.M. Title Loans, Inc., 2012-
NMCA-102, 288 P.3d 888, cert. denied, 2012-NMCERT-009.

Ban on class-wide arbitration was unconscionable. — Where a loan agreement
contained an arbitration provision that banned class-wide arbitration and substantial
evidence showed that the likelihood that plaintiff’s costs in bringing an individual claim
would exceed plaintiff’s damages was reasonably certain and that a meaningful remedy
for plaintiff’s claims was only available through class action relief, the class action ban in
the arbitration provision was substantively unconscionable and unenforceable. Felts v.
CLK Mgmt., Inc., 2011-NMCA-062, 149 N.M. 681, 254 P.3d 124, cert. granted, 2011-
NMCERT-006, 150 N.M. 764, 266 P.3d 633.

Ban on class-wide arbitration was not severable from arbitration provision. —
Where a loan agreement contained an arbitration provision that banned class-wide
arbitration; the class action ban was a key limitation to the means by which the parties
could resolve their disputes under the loan agreement; the class action ban was
substantively unconscionable and unenforceable; and the class action ban was not
severable from the remainder of the arbitration provision, the entire arbitration provision
was unenforceable. Felts v. CLK Mgmt., Inc., 2011-NMCA-062, 149 N.M. 681, 254 P.3d
124, cert. granted, 2011-NMCERT-006, 150 N.M. 764, 266 P.3d 633.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 4 Am. Jur. 2d Alternative Dispute
Resolution § 70 et seq.

Validity and effect, and remedy in respect, of contractual stipulation to submit disputes
to arbitration in another jurisdiction, 12 A.L.R.3d 892.

Validity and construction of provision for arbitration of disputes as to alimony or support
payments, or child visitation or custody matters, 38 A.L.R.5th 69.

Validity and enforceability of provision for binding arbitration, and waiver thereof, 24
A.L.R.3d 1325.

Validity and construction of agreement between attorney and client to arbitrate disputes
arising between them, 26 A.L.R.5th 107.

Participation in arbitration proceedings as waiver to objections to arbitrability under state
law, 56 A.L.R.5th 757.

Validity and effect under state law of arbitration agreement provision for laternative
method of appointment of arbitrator where one party fails or refuses to follow
appointment procedure specified in agreement, 75 A.L.R.5th 595.

Validity and effect under Federal Arbitration Act (9 U.S.C.A. § 1 et seq.) of arbitration
agreement provision for alternative method of appointment of arbitrator where one party
fails or refuses to follow appointment procedure specified in agreement, 159 A.L.R. Fed.
1

6 C.J.S. Arbitration § 14.