103 P.3d 753 (2004)

Therese R. ZUVER, Petitioner,
v.
AIRTOUCH COMMUNICATIONS, INC., a foreign corporation; and Cellco Partnership, d/b/a/ Verizon Wireless; and Seattle SMSA Limited Partnership, d/b/a Verizon Wireless, a foreign partnership; and Verizon Wireless (VAW) LLC, d/b/a Verizon Wireless; and Verizon Communications, Inc.; and Vodafone Americas Asia, Inc., Respondents.

No. 74156-5.

Supreme Court of Washington, En Banc.

Argued June 8, 2004. Decided December 23, 2004.

*756 Mitchell Alan Riese, Craig Patrick Barnes, Seattle, for Petitioner.

Elizabeth Anne Hawkins, Gregory Evans, Howard M. Ullman, Orrick Herrington & Sutcliffe LLP, San Francisco, for Respondents.

Timothy J. O'Connell, Molly Margaret Daily, Seattle, Kristopher Ian Tefft, Association of Washington Business, Olympia, for Amicus Curiae Association of Washington Business.

Rex Darrell Berry, Berry & Block LLP, Sacramento, for Amicus Curiae Circuit City Stores Inc.

Stewart Andrew Estes, Keating Bucklin & McCormack, Michael Barr King, Ralph Crockett Pond, Lane Powell Spears Lubersky LLP, Seattle, for Amicus Curiae Washington Defense Trial Lawyers.

Jeffrey Lowell Needle, Seattle, for Amicus Curiae Washington Employment Lawyers Association.

Debra Leigh Williams Stephens, Bryan Patrick Harnetiaux, Spokane, for Amicus Curiae *757 Washington State Trial Lawyers Association Foundation.

BRIDGE, J.

This case requires us to consider the enforceability of a predispute arbitration agreement between an employer, Airtouch Communications, Inc. (Airtouch), and its employee, Therese R. Zuver. Zuver appeals a superior court order granting Airtouch's motion to compel arbitration and stay proceedings. She principally argues that the arbitration agreement is both procedurally and substantively unconscionable, and thus, this court should strike down the entire arbitration agreement. Conversely, Airtouch claims that the arbitration agreement is neither procedurally nor substantively unconscionable; however, in the event that we find any of the agreement's provisions substantively unconscionable, Airtouch asserts that the agreement's severability clause requires this court to sever the offending provisions and enforce the remainder. We hold that the provisions of the agreement pertaining to confidentiality and limitation of remedies are substantively unconscionable but agree with Airtouch that the agreement's severability clause requires us to sever these provisions and enforce the remainder of the agreement.

I

STATEMENT OF FACTS

On April 10, 1997, Airtouch offered Zuver employment as a sales support representative at the yearly salary of $21,000. As part of its offer of employment, Airtouch required that Zuver accept certain conditions. One of these conditions was that Zuver sign an agreement to arbitrate her disputes.

The arbitration agreement states in relevant part:

AGREEMENT FOR ARBITRATION

Any claim, controversy or dispute between you and U S West,[^[1]] unless otherwise covered by a collective bargaining agreement, whether sounding in contract, statute, tort, fraud, misrepresentation, discrimination or any other legal theory, including, but not limited to, disputes relating to the interpretation of this Attachment; ... whenever brought shall be resolved by arbitration.... You hereby waive and release all rights to recover punitive or exemplary damages in connection with any common law claims, including claims arising in tort or contract, against U S West. By signing this Attachment, you voluntarily, knowingly, and intelligently waive any right you may otherwise have to seek remedies in court or other forums, including the right to a jury trial and the right to seek punitive damages on common law claims. The Federal Arbitration Act, 9 U.S.C. §§ 1-16 ("FAA") shall govern the arbitrability of all claims, provided that they are enforceable under the Federal Arbitration Act.... Additionally, the substantive law of Colorado, only to the extent it is consistent with the terms stated in this Agreement for Arbitration, shall apply to any common law claims.

A single arbitrator engaged in the practice of law shall conduct the arbitration under the applicable rules and procedures of the American Arbitration Association ("AAA"). Any dispute that relates to your employment with U S West or to the termination of your employment will be conducted under the AAA Employment Dispute Resolution Rules.... All arbitration proceedings, including settlements and awards, under the Agreement will be confidential. The parties shall share equally the hourly fees of the arbitrator. U S West shall pay the expenses (including travel and lodging) of the arbitrator. The prevailing party in any arbitration may be entitled to receive reasonable attorney's fees.... If any party hereto files a judicial or administrative action asserting claims subject to this arbitration provision, and another party successfully stays such action and/or compels arbitration of such claims, the party filing said action shall pay *758 the other party's costs and expenses incurred in seeking such stay and/or compelling arbitration, including reasonable attorney's fees.

SEVERABILITY AND SURVIVAL OF TERMS

In case any one or more of the provisions of this Attachment shall be found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained in this Attachment will not be affected.... The provisions of this Attachment regarding trade secrets and confidential information and arbitration shall survive the termination of your employment by U S West.

Clerk's Papers (CP) at 36-37. Zuver signed the arbitration agreement on April 25, 1997. She claims that she was not offered an option to negotiate the terms of the agreement.

Zuver had been diagnosed with fibromyalgia in November 1996. After she accepted Airtouch's offer of employment, her condition worsened. As a result of her increasing fatigue and chronic pain, she requested accommodation from Airtouch in March 1999. Specifically, she requested that "she be allowed to work part-time and to telecommute, working at home." Id. at 14. Although Airtouch allegedly permitted other similarly situated employees to telecommute, it denied Zuver's request but permitted her to work part-time beginning in June 1999. Zuver began her part-time work schedule in June 1999, but by July 1999, she could no longer work even part-time because of her disability. Consequently, she went on medical leave until April 6, 2000, when Airtouch terminated her employment.

On June 3, 2002, Zuver filed a complaint in superior court alleging that Airtouch violated the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, by discriminating against her because of her disability and by failing to accommodate her disability. Airtouch answered Zuver's complaint on June 24, 2002, denying her allegations, but failing to mention the arbitration agreement. Both Zuver and Airtouch first learned of the arbitration agreement in April 2003 after Zuver had contacted Verizon Wireless, who, after acquiring Airtouch, now controlled Airtouch's former employees' personnel files, to request a copy of her file. After learning of the agreement, Airtouch informed Zuver of its discovery, and on May 21, 2003, moved to compel arbitration. On May 30, 2003, the superior court granted Airtouch's motion to compel arbitration and stayed further proceedings.

Pursuant to RAP 2.3(b)(2), Zuver filed a motion for discretionary review to this court asserting that the arbitration agreement is unenforceable because it is both procedurally and substantively unconscionable. We granted review.

II

ANALYSIS

The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, applies to all employment contracts except for employment contracts of certain transportation workers. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). Section 2 of the FAA provides that written arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2 (emphasis added.). The United States Supreme Court has stated that "[s]ection 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary."^[2]Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)). "The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage *759 of the Act." Id. Both state and federal courts must enforce this body of substantive arbitrability law. Perry v. Thomas, 482 U.S. 483, 489, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987) (citing Southland Corp. v. Keating, 465 U.S. 1, 11-12, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984)); see also Garmo v. Dean, Witter, Reynolds, Inc., 101 Wash.2d 585, 590, 681 P.2d 253 (1984). Courts must indulge every presumption "in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability." Moses H. Cone Mem'l Hosp., 460 U.S. at 25, 103 S.Ct. 927.

Although federal and state courts presume arbitrability, "generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2." Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996); see also Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 281, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). However, courts may not refuse to enforce arbitration agreements under state laws that apply only to such agreements, Doctor's Associates, 517 U.S. at 687, 116 S.Ct. 1652 (citing Allied-Bruce, 513 U.S. at 281, 115 S.Ct. 834); see also Southland, 465 U.S. at 16, 104 S.Ct. 852; Garmo, 101 Wash.2d at 590, 681 P.2d 253, or by "rely[ing] on the uniqueness of an agreement to arbitrate." Perry, 482 U.S. at 493 n. 9, 107 S.Ct. 2520 (emphasis added).

We engage in de novo review of a trial court's decision to grant a motion to compel or deny arbitration. Ticknor v. Choice Hotels Int'l, Inc., 265 F.3d 931, 936 (9th Cir.2001), cert. denied, 534 U.S. 1133, 122 S.Ct. 1075, 151 L.Ed.2d 977 (2002); Stein v. Geonerco, Inc., 105 Wash.App. 41, 45, 17 P.3d 1266 (2001); Tjart v. Smith Barney, Inc., 107 Wash.App. 885, 893, 28 P.3d 823 (2001), review denied, 145 Wash.2d 1027, 42 P.3d 974 (2002), cert. denied, 537 U.S. 954, 123 S.Ct. 424, 154 L.Ed.2d 303 (2002). The party opposing arbitration bears the burden of showing that the agreement is not enforceable. See Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000); Stein, 105 Wash.App. at 48, 17 P.3d 1266.

UNCONSCIONABILITY

It is black letter law of contracts that the parties to a contract shall be bound by its terms. See Nat'l Bank of Wash. v. Equity Investors, L.P., 81 Wash.2d 886, 912-13, 506 P.2d 20 (1973). Zuver argues that she should be exempt from the terms of the contract with her employer here because it is both procedurally and substantively unconscionable. "The existence of an unconscionable bargain is a question of law for the courts."^[3]Nelson v. McGoldrick, 127 Wash.2d 124, 131, 896 P.2d 1258 (1995) (citing Mieske v. Bartell Drug Co., 92 Wash.2d 40, 50, 593 P.2d 1308 (1979)). In Washington, we have recognized two categories of unconscionability, substantive and procedural. Id. (citing Schroeder v. Fageol Motors, Inc., 86 Wash.2d 256, 260, 544 P.2d 20 (1975)). "Substantive unconscionability involves those cases where a clause or term in the contract is alleged to be one-sided or overly harsh." Schroeder, 86 Wash.2d at 260, 544 P.2d 20. "`Shocking to the conscience', `monstrously harsh', and `exceedingly calloused' are terms sometimes used to define substantive unconscionability." Nelson, 127 Wash.2d at 131, 896 P.2d 1258 (quoting Montgomery Ward & Co. v. Annuity Bd. of S. Baptist Convention, 16 Wash.App. 439, 444, 556 P.2d 552 (1976)). Procedural unconscionability is "the lack of meaningful choice, considering all the circumstances surrounding the transaction including `"[t]he manner in which the contract was entered," whether each party had "a reasonable opportunity to understand the terms of the contract," and whether "the important terms [were] hidden in a maze of fine print."'" Id. at 131, 896 P.2d 1258 (quoting Schroeder, 86 Wash.2d at 260, 544 P.2d 20 (quoting Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C.Cir.1965))). We have cautioned that *760 "these three factors [should] not be applied mechanically without regard to whether in truth a meaningful choice existed."^[4]Id.

Procedural Unconscionability

As noted, to determine whether Zuver's and Airtouch's arbitration agreement is procedurally unconscionable we look to the following circumstances surrounding their transaction to determine whether Zuver lacked meaningful choice: "`[t]he manner in which the contract was entered,' whether [Zuver] had `a reasonable opportunity to understand the terms of the contract,' and whether `the important terms [were] hidden in a maze of fine print.' "Schroeder, 86 Wash.2d at 260, 544 P.2d 20 (quoting Williams, 350 F.2d at 449).

First, Zuver asserts that the arbitration agreement is an adhesion contract, which she contends justifies a finding of procedural unconscionability. We have adopted the following factors to determine whether an adhesion contract exists: "(1) whether the contract is a standard form printed contract, (2) whether it was `prepared by one party and submitted to the other on a "take it or leave it" basis', and (3) whether there was `no true equality of bargaining power' between the parties." Yakima County (W.Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wash.2d 371, 393, 858 P.2d 245 (1993) (quoting Standard Oil Co. of Cal. v. Perkins, 347 F.2d 379, 383 n. 5 (9th Cir.1965)). In Yakima County Fire Protection District, we noted that "to the extent that the characterization of a contract as an adhesion contract has any relevance to determining the validity of a contract, it is only in looking for procedural unconscionability." 122 Wash.2d at 393, 858 P.2d 245. However, the fact that an agreement is an adhesion contract does not necessarily render it procedurally unconscionable. See Yakima County Fire Prot. Dist., 122 Wash.2d at 393, 858 P.2d 245. See also Mendez v. Palm Harbor Homes, Inc., 111 Wash.App. 446, 459, 45 P.3d 594 (2002); Luna v. Household Fin. Corp., 236 F.Supp.2d 1166, 1175 (W.D.Wash.2002); Walters v. A.A.A. Waterproofing, Inc., 120 Wash.App. 354, 362, 85 P.3d 389 (2004).

Zuver's and Airtouch's arbitration agreement is an adhesion contract. First, all Airtouch employees received the standard form printed arbitration agreement. Airtouch informed Zuver that she must sign the agreement as a condition of its offer of employment, i.e., on a "take it or leave it basis." Presumably, Zuver could not negotiate the terms of the agreement with Airtouch. Thus, there was "`no true equality of bargaining power.'" Yakima County Fire Prot. Dist., 122 Wash.2d at 393, 858 P.2d 245 (quoting Standard Oil, 347 F.2d at 383 n. 5). Nonetheless, the fact that Zuver's and Airtouch's arbitration agreement is an adhesion contract does not end our inquiry. Id.

Zuver further asserts that the arbitration agreement is procedurally unconscionable because her unequal bargaining power precluded her from "`enjoying a meaningful opportunity to negotiate and choose the terms of the contract.'" Br. of Pet'r at 24 (quoting Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1171 (9th Cir.2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed.2d 1204 (2004)). Airtouch, however, argues that the mere presence of unequal bargaining power does not render the agreement procedurally *761 unconscionable. Airtouch claims that it provided Zuver with a reasonable opportunity to consider the terms of the agreement and that its terms were fully disclosed. Thus, Airtouch reasons that Zuver had a meaningful choice to sign the agreement.

We agree with Airtouch. Washington courts have long held that the fact that unequal bargaining power exists will not, standing alone, justify a finding of procedural unconscionability. See Yakima County Fire Prot. Dist., 122 Wash.2d at 392-93, 858 P.2d 245; Tjart, 107 Wash.App. at 898-99, 28 P.3d 823; Pub. Employees Mut. Ins. Co. v. Hertz Corp., 59 Wash.App. 641, 650, 800 P.2d 831 (1990), review denied, 116 Wash.2d 1013, 807 P.2d 884 (1991); Mendez, 111 Wash.App. at 459, 45 P.3d 594. Rather, the key inquiry for finding procedural unconscionability is whether Zuver lacked meaningful choice. See Schroeder, 86 Wash.2d at 260, 544 P.2d 20. As described in detail below, the facts here show that Zuver had a meaningful choice.

First, Airtouch sent Zuver a letter on April 10, 1997, explaining that it was extending her an offer of employment for a sales support representative position provided that she sign six documents, one of which was the arbitration agreement. Airtouch did not demand that Zuver return the agreement immediately. In fact, Zuver did not sign the agreement until April 25, 1997, 15 days after Airtouch first contacted her. She had ample opportunity to contact counsel or even Airtouch with any concerns or questions she might have had about the terms of the agreement. See Luna, 236 F.Supp.2d at 1176 (three-day rescission period provided parties with a reasonable opportunity to consider the terms of the agreement). She did neither.

Additionally, the important terms of the arbitration agreement were not hidden in a "`maze of fine print.'" Schroeder, 86 Wash.2d at 260, 544 P.2d 20 (quoting Williams, 350 F.2d at 449). Although Zuver received the agreement with five other attachments, the agreement was clearly labeled "ARBITRATION AGREEMENT," underlined, bolded, and in capital letters. CP at 36. See M.A. Mortenson Co. v. Timberline Software Corp., 140 Wash.2d 568, 588, 998 P.2d 305 (2000) (holding that the fact that a license agreement's terms were in capital letters did not support the party's argument that the agreement was procedurally unconscionable). Lastly, the agreement's terms were in normal typeface and font, and the agreement itself was only one page long. CP at 36-37. See Luna, 236 F.Supp.2d at 1176 (holding that one-page long arbitration agreement with terms in newspaper size typeface did not support a finding that the agreement was procedurally unconscionable).

In the end, Zuver relies solely on her lack of bargaining power to assert that we should find the agreement procedurally unconscionable. This will not suffice. At minimum, an employee who asserts an arbitration agreement is procedurally unconscionable must show some evidence that the employer refused to respond to her questions or concerns, placed undue pressure on her to sign the agreement without providing her with a reasonable opportunity to consider its terms, and/or that the terms of the agreement were set forth in such a way that an average person could not understand them. See Nelson, 127 Wash.2d at 135-36, 896 P.2d 1258; Schroeder, 86 Wash.2d at 261-62, 544 P.2d 20; M.A. Mortenson Co., 140 Wash.2d at 588, 998 P.2d 305. Indeed, as the Fourth Circuit aptly reasoned, if a court found procedural unconscionability based solely on an employee's unequal bargaining power, that holding "could potentially apply to [invalidate] every contract of employment in our contemporary economy." Adkins v. Labor Ready, Inc., 303 F.3d 496, 501 (4th Cir.2002).

Substantive Unconscionability

Next, Zuver argues that the arbitration agreement's fee-splitting, attorney fees, confidentiality, and remedies limitations provisions are substantively unconscionable. Airtouch, however, asserts that Zuver improperly relies on California and the Ninth Circuit, and that, in any event, none of the cited provisions are substantively unconscionable.

Fee-Splitting Provision

Zuver claims that the fee-splitting provision in the arbitration agreement is substantively *762 unconscionable because "`[t]he arbitration process cannot generally require the employee to bear any type of expenses that the employee would not be required to bear if he or she was free to bring the action in court.'" Br. of Pet'r at 10 (quoting Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal.4th 83, 110-11, 6 P.3d 669, 99 Cal.Rptr.2d 745 (2000)). Zuver contends that requiring her to split the arbitrator's fees would make the costs of her suit prohibitively expensive. Airtouch, on the other hand, argues that pursuant to the United States Supreme Court's decision in Green Tree Financial Corp., 531 U.S. at 91-92, 121 S.Ct. 513, Zuver has failed to meet her burden to produce evidence showing that this fee-splitting provision makes arbitration prohibitively expensive. Airtouch also argues that, since it has offered to pay the arbitrator's fees in full, Zuver's argument is moot.

In Green Tree Financial Corp., the United States Supreme Court considered an argument similar to Zuver's. 531 U.S. at 91-92, 121 S.Ct. 513. There the petitioner, Randolph, argued that an arbitration agreement's fee-splitting provision effectively denied her a forum to vindicate her discrimination claims.^[5]Id. at 90, 121 S.Ct. 513. The Court acknowledged that arbitration fees could prohibit employees from bringing their discrimination claims but held that "where ... a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs." Id. at 92, 121 S.Ct. 513.

Like Randolph, Zuver offers no specific information about the arbitration fees she will be required to share and why such fees would effectively prohibit her from bringing her claims. Instead, she urges us to adopt the Court of Appeals decision in Mendez, 111 Wash.App. 446, 45 P.3d 594. In that case the court considered whether a fee-splitting provision in an arbitration agreement was substantively unconscionable. Applying the United States Supreme Court's holding in Green Tree Financial Corp., the court first held that the party seeking to avoid arbitration, Mendez, must provide evidence showing that arbitration would impose prohibitive costs. Id. at 461-62, 45 P.3d 594. At the trial court, Mendez had produced an affidavit describing his difficult financial circumstances and provided information obtained from the American Arbitration Association's