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Employment Contract and Unconscionability

As to the first conclusion, the nature of the waiver agreed to by a parent on behalf of a child-whether it concerns waiver of a legal claim or right, or waiver of the forum in which the claim is presented-is a crucial consideration in determining whether the state’s interest in protecting children renders the waiver unenforceable. While the rights of access to the courts and trial by jury are valuable constitutional rights, we cannot equate a pre-injury release of liability with a pre-injury agreement to arbitrate. As noted by the Ohio court in Cross, such an agreement “does not extinguish the claim.”… Instead, an arbitration agreement constitutes a prospective choice of forum which “trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.”… The relative advantages and disadvantages of arbitration and litigation may make one path or another preferable to a party, but nothing in the opinion below, the arguments of the parties, or our precedent suggests that an arbitration clause alone is tantamount to waiver or forfeiture of a wrongful death or personal injury claim. In recognizing this distinction, we emphasize that we are assessing only the enforceability of the arbitration clause in this case, and not the release clause.
Further, the lack of a statutory requirement for court involvement in pre-injury arbitration agreements provides a basis for treating these agreements differently from settlements of lawsuits involving minors’ claims, for which appointment of a guardian ad litem and court approval are necessary under certain circumstances…The Legislature has chosen to authorize court protection of children’s interests as to extant causes of action, but has not exercised its prerogative as parens patriae to prohibit arbitration of those claims.

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