12
stage, meet his burden to defeat arbitration on that ground. When one
party, like AutoNation, invokes its right to arbitrate a dispute, it must
show some basis grounded in a contract or other binding law to compel
the other party, like Shattenkirk, not only to submit to arbitration but
also to pay some particular amount toward the costs of that arbitration.
Here, if the court of appeals determines on remand that Shattenkirk
signed the arbitration agreement, perhaps AutoNation will decide to pay
for the arbitration itself, thus eliminating any dispute about payment
terms and, in turn, foreclosing unconscionability as a ground for
avoiding arbitration. If AutoNation insists on some payment from
Shattenkirk, and Shattenkirk resists arbitration on that ground, only
then will the court have to address the legal basis for Shattenkirk’s
obligation to pay and, if so, what amount. And only once that question
is answered would an assessment of unconscionability be ripe for
judicial consideration.
4
In other words, the question Shattenkirk
presents to us today may never even arise, and if it does, it will be
because of how several antecedent questions are resolved. Had the
arbitration agreement not been silent, none of these problems would
have arisen.
4
If the parties in fact reach this point, the resulting analysis would no
longer depend on speculation but would be grounded on a factual record
regarding Shattenkirk’s actual obligations. For example, if the parties proceed
with “standard” cost allocation as reflected by the AAA and JAMS rules
governing employment arbitrations, the vast majority of the costs will be
allocated to AutoNation, the employer. Based on the evidence presented,
concluding that costs will likely be allocated in such a way as to make
arbitration prohibitively expensive for Shattenkirk would be, at best,
premature now, but further development of the case would convert that
speculation into something more certain.