On application of a party showing an agreement described in § 16-108-201 and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party; otherwise, the application shall be denied.
Specifically, the fact that the check cashier had the right to seek redress in a court of law, while the customer was limited strictly to arbitration, demonstrated a lack of mutuality
Clearly, under the foregoing statutory provisions, a party resisting arbitration may dispute the existence or validity of the agreement to arbitrate. Showmethemoney, 342 Ark. 112, 27 S.W.3d 361.
This court has held that arbitration is a matter of contract between parties. See May Constr. Co. v. Benton Sch. Dist. No. 8, 320 Ark. 147, 895 S.W.2d 521 (1995). There, this court stated:
The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally, thus we will seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself. 5 Am.Jur.2d § 14; and see Prepakt Concrete Co. v. Whitehurst Bros., 261 Ark. 814, 552 S.W.2d 212 (1977). It is generally held that arbitration agreements will not be construed within the strict letter of the agreement but will include subjects within the spirit of the agreement. 5 Am.Jur.2d § 14; Uniform Laws Annotated, Vol. 7, Uniform Arbitration Act, § 1, Note 53 (and cases cited therein).
Id. at 149, 895 S.W.2d at 523 (quoting Wessell Bros. Foundation Drilling Co. v. Crossett Pub. Sch. Dist., No. 52, 287 Ark. 415, 418, 701 S.W.2d 99, 101 (1985)). Moreover, the construction and legal effect of a written contract to arbitrate are to be determined by the court as a matter of law. Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001); May Constr. Co. v. Thompson, 341 Ark. 879, 20 S.W.3d 345 (2000).
112, 27 S.W.3d 361, by arguing that all of the essential elements of a valid contract are present in their agreement. In Showmethemoney, this court held that the essential elements of a contract include: (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. See also Foundation Telecomms., Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000). This court ultimately held that the arbitration agreement at issue in Showmethemoney was invalid because of a lack of mutual obligations. This court explained:
A contract to be enforceable must impose mutual obligations on both of the parties thereto. The contract is based upon the mutual promises installment loans in Missouri made by the parties; and if the promise made by either does not by its terms fix a real liability upon one party, then such promise does not form a consideration for the promise of the other party. “? [M]utuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound.” A contract, therefore, which leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other.
Doubts and ambiguities of coverage should be resolved in favor of arbitration
342 Ark. at 120, 27 S.W.3d at 366. Thus, under Arkansas law, mutuality requires that the terms of the agreement impose real liability upon both parties. Showmethemoney, 342 Ark. 112, 27 S.W.3d 361; Townsend v. Standard Indus., Inc., 235 Ark. 951, 363 S.W.2d 535 (1962). There is no mutuality of obligation where one party uses an arbitration agreement to shield itself from litigation, while reserving to itself the ability to pursue relief through the court system. See Showmethemoney, 342 Ark. 112, 27 S.W.3d 361.