Is the Agreement Unconscionable?
Whether an agreement is a contract of adhesion is closely related to whether the contract is unconscionable. Under either the FAA or the MUAA, Missouri common law contract defenses such as unconscionability, fraudulent misrepresentation, or duress can invalidate the agreement.36 Unconscionability presents by far the most common concern, and attack, regarding physician/patient arbitration agreements. Unconscionability has two aspects: procedural unconscionability and substantive unconscionability. “Procedural unconscionability deals with the formalities of making the contract, while substantive unconscionability deals with the terms of the contract itself.”37 The court must find aspects of “both procedural and … substantive unconscionability” to void an arbitration agreement or a clause of the agreement.38 Procedural and substantive unconscionability are considered on a sliding scale. A court may invalidate a contract based on highly coercive circumstances surrounding the entry of the a
