(concurring specially).
I agree with majority’s conclusion that “[w]e have no occasion to determine in this case whether plaintiff could have been required to submit her claim to arbitration if she did not wish to do so.” I concur specially because of other language in the opinion.
The balance of this opinion responds to issues raised in the dissent.
I. Policy toward arbitration. The dissent suggests this jurisdiction has a longstanding hostility to the process of arbitration which should be cast aside for a more “modern” and enlightened view that would enable us to declare this arbitration provision valid and enforceable. In thus pummeling the court’s alleged prejudice, the dissent blurs a distinction apparent in both our statutory and case law. This state has always favored voluntary arbitration of specific disputes. Chapter 679, The Code, which provides a simple arbitration procedure to resolve controversies, originated with the 1851 Code. § 2098 et seq. Over 36 years ago this court said:
The settlement of civil disputes by arbitration is a legally favored contractual proceeding whose object is to speedily determine the matter by a tribunal chosen by themselves, and thereby avoid the formalities, delay and expense of litigation in court. Such a method of settling controversies is a favorite of the law.
First Nat’l Bank v. Clay, 231 Iowa 703, 713, 2 N.W.2d 85, 91 (1942) (citations omitted).
The hostility sensed by the dissent is not to arbitration of the above type, but to the concept persons may lose their recourse to courts and may be forced to arbitrate disputes not envisioned when the contract was made, by provisions to which no real assent was given.
These basic tensions have been expressed thusly:
*875The appearance of an arbitration clause in an adhesion contract is a theoretical inconsistency. * * * [AJdvocates of arbitration continue to stress that parties should agree to arbitrate conflicts arising between them on a wholly voluntary basis. In an ideal situation, two parties of roughly equal bargaining power agree to forego their right to seek justice in the courts in favor of what they perceive to be the greater benefits of arbitration * * *. Yet, voluntariness and equality of bargaining power have no place in a world of contracts of adhesion.
W. Wright, Arbitration Clauses in Adhesion Contracts, 33 Arb.J. 41, 41-42 (1978).
In the insurance policy before us neither the validity nor enforceability of the arbitration clause in this insurance policy is an issue. Nonetheless, the dissent injects both concepts into the case, treats them indiscriminately, and asks us to approve all clauses to arbitrate future disputes as valid and enforceable regardless of how general in scope, and despite inclusion in an adhesion contract.
II. Validity and enforcement. Validity of an arbitration clause refers to whether the parties can bargain and agree to submit disputes to arbitration. A valid arbitration clause is then enforceable only if the parties did bargain and agree to include such a clause in their contract. Obviously an invalid clause is also unenforceable, not because the parties did not agree to arbitrate, but only because the court has determined, for public policy reasons, the parties could not agree to arbitrate. In such cases, the issue whether the parties did agree is never reached. See Wheeler v. St. Joseph Hosp., 63 Cal.App.3d 345, 354, 133 Cal.Rptr. 775, 781-82 (1976); A. Widiss, Guide to Uninsured Motorist Coverage §§ 6.6 at 184-85, 6.7 — .11 (1969).
Agreements to arbitrate “any and all controversies” that may arise from a contractual relationship have been held invalid and unenforceable in our prior cases. See Joseph L. Wilmotte & Co. v. Rosenman Bros., 258 N.W.2d 317, 325 (Iowa 1977). Although the arbitration clause before us is limited to two specific questions, in practice these cover most uninsured motorist insurance controversies, as the dissent indicates.
But determining the validity of this clause would not affect the outcome of this appeal. If it is invalid Johnson was not required to arbitrate. She could withdraw from the arbitration before an award was made, Wilmotte, 258 N.W.2d at 325, and, as she has done, pursue her remedy in court. If the clause is valid, her course of action remains unaffected. Johnson grounds her suit on failure of Fireman’s Fund to proceed with arbitration, a process she launched.
Nor is enforceability of this arbitration clause an issue here. Johnson, who is not the original insured, does not contend there was no voluntary agreement to arbitrate. She made a deliberate, counseled decision to benefit under the contract and now alleges she tried to arbitrate but Fireman’s Fund would not cooperate. The issue is whether she complied with the contract and whether her demand obligated the insurer to proceed. This issue has been resolved by the majority opinion.
The dissent’s gratuitous arguments that this arbitration clause is enforceable against Johnson, in the sense it was voluntarily agreed to, reaches an issue Johnson did not elect to litigate. In apparently urging this court to find a voluntary agreement to arbitrate future disputes in an adhesion contract, however, the dissent misstates our approach to an adhesion contract problem and has little authority to support its conclusion.
III. Adhesion contract. In asserting that a future disputes arbitration clause in an insurance adhesion contract is enforceable the dissent, as we have already noted, states the controlling consideration is the court’s attitude on arbitration. A favorable attitude, it implies, should overcome a plain case of unawareness of the arbitration provision, the universal requirement that there be a voluntary agreement to arbitrate, and the concept that reasonable expectations of an ordinary insured should not be nullified by unexpected provisions in an adhesion contract.
*876The fallacy in this reasoning should be apparent. A jurist’s personal disdain for any particular clause is wholly irrelevant if the contracting parties have agreed to include it in their contract. In determining whether an insured in fact agreed to the inclusion of an otherwise valid arbitration clause in his or her uninsured motorist coverage, we are only protecting a consumer’s reasonable expectations through settled principles of contract law. Flavoring those reasonable expectations to our own tastes in contract clauses deprives both parties of their freedom to contract and ultimately protects no one. As demonstrated in divisions which follow, one need not be a strident foe of arbitration to recognize the insured is giving up a lot and accepting some risks in theoretically “agreeing” to arbitrate future disputes regarding his uninsured motorist coverage.
The dissent also employs this irrelevant attitudinal consideration to devise a rule which, if adopted, would emasculate precedents in this and other jurisdictions. Our case law does not hold that the adherent in an adhesion contract is bound by all terms in the agreement except those to which the maker “has reason to believe” the adherent would not assent if he or she knew of their inclusion. The test, at the very least, is the adherent’s reasonable expectations, not the maker’s. A contract of adhesion is construed strictly against the maker and in favor of the adherent to give effect to his or her reasonable expectations. See generally C &J Fertilizer, Inc. v. Allied Mut. Ins. Co., 227 N.W.2d 169, 176-77 (Iowa 1975); Rodman v. State Farm Mut. Auto. Ins. Co., 208 N.W.2d 908, 905-08 (Iowa 1973); Restatement (Second) of Contracts § 237, Comments e & f at 540-41 (Tent. Draft Nos. 1-7, 1973); 1 Corbin on Contracts § 1 at 2 (1963); 7 Williston on Contracts § 900 at 33-34 (3d ed. 1963); K. Llewellyn, The Common Law Tradition — Deciding Appeals 362-71 (1960); R. Keeton, Insurance Law Rights at Variance With Policy Provisions, 83 Harv.L.Rev. 961, 966-67 (1970); W. Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84 Harv.L.Rev. 529 (1971).
Finally, the dissent supports its conclusion with authorities which with but one exception concern the validity of arbitration clauses in uninsured motorist coverage, not enforceability. Of all the cases cited by the dissent or in the 24 A.L.R.3d 1325 annotation, only one has addressed the adhesion contract problem and resolved it adversely to the insured: Wales v. State Farm Mutual Insurance Co., 559 P.2d 255, 258 (Colo.App.1976). In other cases where this issue has been raised, it has received favorable treatment. See Heisner v. Jones, 184 Neb. 602, 607, 169 N.W.2d 606, 609-10 (1969); Barnhart v. Civil Serv. Employees Ins. Co., 16 Utah 2d 223, 229, 398 P.2d 873, 877 (1965).
As indicated above, an arbitration clause buried in an adhesion contract may generate two subsumed issues: whether the requirement of a voluntary agreement to arbitrate is met, and whether the reasonable expectations of the ordinary adherent have been frustrated by inclusion of the clause in uninsured motorist coverage.
IV. Voluntary agreement. For contract provisions to be binding there must be mutuality of assent between the parties. This assent must arise at the time the contract is made. See McCarter v. Uban, 166 N.W.2d 910 (Iowa 1969). Mutuality of assent is especially necessary for a binding arbitration clause. This is because of the important rights that are waived by arbitration agreements. Some arbitration provisions, like this one, provide that the arbitrator’s decision shall be binding and final between the parties. See, e. g., Prader v. National Masonic Accident Ass’n, 95 Iowa 149, 160, 63 N.W. 601, 605 (1895). In such cases arbitration, except for entry and enforcement of judgment, entirely supplants the judicial process. Such disputes are determined by those outside the judicial system, and without the right to judicial safeguards.
Other arbitration provisions call for submission to arbitration as a condition precedent to judicial inquiry. Zalesky v. Home Ins. Co., 102 Iowa 613, 619, 71 N.W. 566, 568 *877(1897). This form, denying immediate access to the courts, merely provides a circuitous — and additionally expensive — route to the courthouse.
Section 679.2, The Code, codifies the requirement for clear and mutual assent to statutory arbitration. It provides:
The parties themselves, or those persons who might lawfully have controlled a civil action in their behalf for the same subject matter, must sign and acknowledge a written agreement, specifying particularly what demands are to be submitted, the names of the arbitrators, and court by which the judgment on their award is to be rendered.
An arbitration agreement in which these statutory requirements are not met cannot be enforced in court. Khot v. Towne, 201 Iowa 538, 207 N.W. 596 (1926) (valid acknowledgment held necessary for enforcement of arbitration agreement); Love v. Burns, 35 Iowa 150, 153-54 (1872) (failure to designate court for rendition of judgment on award violates statute and deprives court of jurisdiction thereunder). First National Bank v. Clay, 231 Iowa 703, 2 N.W.2d 85, cited by the dissent for the proposition that ch. 679 does not prohibit “otherwise valid common-law arbitration,” was an action to set aside an arbitration award and a transaction based thereon, not an action to enforce the agreement. The assent of the parties to the contract for arbitration was obvious and uncontested.
In Hawkins/Korshoj v. State Board of Regents, 255 N.W.2d 124, 127-28 (Iowa 1977), we not only pointed out that “[a] party cannot be required to submit to arbitration any dispute which he has not agreed to submit” (emphasis supplied), we approvingly quoted from federal cases a holding that “the moving party should not be deprived of the arbitrator’s judgment, when it was his judgment and all that it connotes that was bargained for.” National R. R. Passenger Corp. v. Missouri Pacific R. R. Co., 501 F.2d 423, 428 (8th Cir. 1974) (emphasis supplied), quoting from United Steelworkers v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403, 1407 (1960). See Wheeler v. St. Joseph Hosp., 63 Cal.App.3d at 355, 133 Cal.Rptr. at 782 (“The fundamental assumption of arbitration is that it may be invoked as an alternative to the settlement of disputes through the judicial process ‘only by reason of an exercise of choice by [all] parties.’ ”).
The dissent shuns the statutory arbitration theory of the parties and relies on the theory of common-law arbitration. But it is apparent we should require the same showing of a clear and mutual assent for common-law arbitration as we would require for a statutory arbitration proceeding.
This requirement should be heightened when the arbitration agreement at issue is contained in an insurance policy. As Willi-ston recognizes:
Since insurance contracts are generally, in fact, almost invariably, contracts of adhesion, and since applicants for insurance rarely read and even less frequently understand the language of the policy, a very real argument may be made as to the binding character of the arbitration clause.
16 Williston, supra, at 495.
Professor Widiss, one of the few experts in the narrow area of uninsured motorist coverage, has written the following analysis concerning lack of consent in these situations:
There are several reasons to question whether the arbitration terms in the uninsured motorist endorsement constitute a voluntary written agreement. These arguments arise both out of the marketing practices and procedures which exist generally in the automobile liability insurance business, and out of certain aspects which are more directly related to the endorsement.
First, automobile liability insurance is a “take it or leave it” proposition. Throughout the industry there is almost exclusive use of standard provisions which companies will not modify. There is no bargaining with insurance companies over the terms.
Second, the insured usually does not have an opportunity to even examine the *878policy until sometime after he has made his application — when it is either mailed to him or delivered by the company’s agent. This is the first time most insureds ever see their policies. While this process is considered adequate to create a relationship in which the insured is allowed to enforce the policy provisions against the company — the arbitration statutes in these states arguably establish a different norm for an agreement which would allow the company to force an insured to arbitrate a future dispute.
Third, the uninsured motorist coverage is subsidiary to the primary transaction— the acquisition of automobile liability and/or comprehensive coverage. Consequently, to most purchasers, the entire uninsured motorist endorsement is no more than another incomprehensible portion of the insurance policy. In this context, even though the arbitration terms are repeated twice in the endorsement, it is unlikely that any terms of the endorsement buried in the middle of a multi-paged document will even be discovered, let alone questioned, so long as no special steps are taken by insurers to apprise purchasers of these terms.
Fourth, there is a generally accepted maxim that finds application to statutes on a variety of subject matters, according to which “statutes in derogation of the common law are to be strictly construed” (in the absence of a legislative declaration to the contrary). The application of this rule seems justifiable in this context. Especially when viewed in historical perspective, it is clear that the arbitration statutes were designed to modify but not completely eliminate the special status occupied by agreements to arbitrate disputes. It seems equally apparent that the language of the Uniform Act was intended to preserve the precept that the parties must actually enter into a voluntary agreement, as manifested by a written contract. Therefore, so long as terms in automobile liability insurance policies represent something substantially less than actual voluntary agreements by the insured to use arbitration, the arbitration terms should not be taken as a voluntary agreement which abridges a claimant’s right to a judicial determination.
So long as the present marketing practices obtain, there will be no true voluntary agreements to arbitrate disputes arising out of the coverage afforded by the uninsured motorist endorsement. This raises the issue of whether silence on the part of the purchaser after receiving the written policy containing the arbitration terms should be taken as agreement. In order to warrant a determination of agreement by such acquiescence, the individual should have to be both aware of the terms — and understand their importance. In most instances the applicant is not only totally unaware of the provision, but would not comprehend the import of the clauses even if he were to read them.
Widiss, supra, at 185-87 (footnotes omitted).
We have utilized these basic arguments when faced with other insurance policy provisions to which there was no clear showing of assent. E. g., State Farm Auto Ins. Co. v. Malcolm, 259 N.W.2d 833 (Iowa 1977); Steinbach v. Continental Western Ins. Co., 237 N.W.2d 780 (Iowa 1976); C & J Fertilizer, Inc. v. Allied Mut. Ins. Co., 227 N.W.2d at 169. The only remaining justification given for not utilizing them when the provision is an arbitration clause is the observation that such clauses are standard in uninsured motorist coverage. But that shows an adherent has no choice but to purchase coverage which forces him or her into arbitration.
It is clear the essential condition to enforcing an arbitration clause — a free exercise of choice by both parties to reach a voluntary, knowing agreement to pursue that course — cannot and should not be satisfied by the dissent’s proposed rule which, in the final analysis, must be grounded on the fiction that the adherent in an adhesion contract has read, understood and agreed to the provisions cutting him or her off from all judicial remedies.
*879V. Reasonable expectations. It is an axiom of our times that persons are litigation-minded and freely resort to the courts. There should be no serious disagreement that an Iowan reasonably expects this state’s judicial resources to be available for resolution of his or her legal difficulties.
In division IV we already have cited our recent cases (and other authorities) holding the reasonable expectations of the ordinary insured cannot be frustrated by the fine print provisions of a unilateral insurance contract.
This principle ought to be applied in the typical situation in which the policy incorporating the uninsured motorist coverage is delivered to the insured without explanation and is not read by the latter. The dissent suggests no reason why the insured should be on notice to carefully inspect his policy for an obscure provision which substitutes, for his right to go to court, the provisions in an unknown document incorporated by reference. In omitting the essential terms of the arbitration, the clause before us is typical of such devices as they appear in standard form contracts. Those terms must be ascertained by examination of still another document, the American Arbitration Association rules.
We should retain the rule formulated in Rodman and C & J Fertilizer and applied in our subsequent decisions.
VI. Other policy considerations. Other considerations should cause us to hesitate before concluding the type of arbitration provision involved here is so meritorious it should be enforced without regard for the insured’s assent.
A. For example, it is clear that the contracting insurers are underwriting the expenses of the American Arbitration Association, which in turn selects the arbitrators. The rules of that association (which are before us) disclose: “The balance of the administrative costs of AAA are covered by a $125.00 per case surcharge paid by the insurer or self insurer involved.” See also A. Widiss, Perspective on Uninsured Motorist Coverage, 62 Nw.L.Rev. 497, 546 (1967) (“[E]ach insurer that subscribes to the services provided by the American Arbitration Association pays the Association an annual assessment * * *.”).
The following language from Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 148, 89 S.Ct. 337, 339, 21 L.Ed.2d 301, 304 (1968), is relevant here:
But- neither this arbitrator nor the prime contractor gave to petitioner even an intimation of the close financial relations that had existed between them for a period of years. We have no doubt that if a litigant could show that a foreman of a jury or a judge in a court of justice had, unknown to the litigant, any such relationship, the judgment would be subject to challenge. This is shown beyond doubt by Tumey v. Ohio, 273 U.S. 510, 71 L.Ed. 749, 47 S.Ct. 437, 50 A.L.R. 1243 (1927), where this Court held that a conviction could not stand because a small part of the judge’s income consisted of court fees collected from convicted defendants. Although in Tumey it appeared the amount of the judge’s compensation actually depended on whether he decided for one side or the other, that is too small a distinction to allow this manifest violation of the strict morality and fairness Congress would have expected on the part of the arbitrator and the other party in this case. Nor should it be at all relevant, as the Court of Appeals apparently thought it was here, * * * [t]hat the payments received were a very small part of [the arbitrator’s] income * * For in Tumey the Court held that a decision should be set aside where there is “the slightest pecuniary interest” on the part of the judge, and specifically rejected the State’s contention that the compensation involved there was “so small that it is not to be regarded as likely to influence improperly a judicial officer in the discharge of his duty * *
Of course, payment by one of the arbitrating parties of the expenses of the organization selecting the arbitrators is once removed from a direct payment to the arbitrator. Although the potential conflict of interest may be more apparent than real, *880some consideration should be given to the reaction of the other arbitrating party under the rule advanced by the dissent. The insured probably would learn for the first time after the event that the previously unread policy provision eliminated all recourse to the judicial system for resolution of the controversy. Upon receiving the AAA rules the insured would learn AAA selects the “Accident Claims Panel of Arbitrators” and if the parties are unable to agree on a member of the panel as arbitrator, AAA makes the appointment. The insured also would learn for the first time the insurers were underwriting the AAA operating expenses. He or she would surely question whether his or her interests were adequately considered.
B. The only reasons referred to in the dissenting opinion for mandating unlimited voluntary arbitration in these situations is that it saves court time and is a “speedy, informal, and relatively inexpensive procedure for resolving controversies arising out of commercial transactions.” We should judicially note that Iowa courts are not congested with controversies concerning commercial transactions.
Claimed savings in lawyer time and costs in arbitration are open to question. I. Comisky & M. Comisky, Commercial Arbitration — Panacea or Nightmare? 47 Temple L.Q. 457, 459, 476, 484, 492 (1974); 6A Corbin, supra, at 393; A. Widiss, Guide to Uninsured Motorist Coverage, supra, at 247-48. Of course, if the benefits are obvious, there should be no difficulty in securing the insured’s voluntary agreement to arbitrate under the simple provisions of ch. 679, The Code.
C. Although the dissent’s suggested rule is limited to “the uninsured motorist insurance context,” there would be no way to limit its reach into all kinds of standard form contracts. It has been estimated that standard form contracts probably account for more than ninety-nine percent of all contracts now made. W. Slawson, supra, 84 Harv.L.Rev. at 529. The inexorable extension of the doctrine the dissent advances would insure that mandatory future-dispute arbitration soon would appear in all these instruments.
The arbitrator’s award ordinarily is binding as to both the facts and the law. See In re I/S Stavborg v. National Metal Convertors, Inc., 500 F.2d 424, 430-32 (2d Cir. 1974); In re Mercy Lee Mfg. Co. v. Corltey Fabrics Co., 354 F.2d 42, 43 (2d Cir. 1965). 6A Corbin, supra, at 417 (“[A]n award will not be set aside merely because the arbitrators may have been ignorant or mistaken as to a law the knowledge of which might have caused a different decision.”).
Thus the ultimate result of the dissent’s proposed rule would be to deflect from the judicial system most controversies relating to commercial transactions. Growth and development of common law in this area would be stunted:
The protection of awards against judicial interference and, under that umbrella, of the development of organized arbitration as a rulemaker have established “judicial powers” other than those provided by federal and state constitutions. It is not possible to maintain any legally established policy or order in domestic and international trade, whether it is an order of free competition protected by antitrust legislation or any other type of economic order provided by law, if courts abdicate their power in favor of private tribunals serving private interests.
H. Kronstein, Arbitration Is Power, 38 N.Y.U.L.Rev. 661, 699 (1963).
Diverting the flow of cases from the courts by “dejudicialization” has been tried on many bases and at many times but is generally found to be unsatisfactory. See P. Carrington, D. Meador & M. Rosenberg, Justice on Appeal 122-23 (1976).
D.When one is accused of a criminal offense we are careful to require the prosecution to prove defendant knowingly, voluntarily and intelligently waived his or her constitutional rights. Brady v. United States, 397 U.S. 742, 747-48, 90 S.Ct. 1463, 1468-69, 25 L.Ed.2d 747, 756 (1970); State v. Russell, 261 N.W.2d 490, 492-93 (Iowa 1978). It would be strange if we were not to accord those adherents in adhesion con*881tracts, who are not even suspected of any wrongdoing, the same concern.
The dissent’s position would effectively deprive those people of their constitutional right to jury trial and due process protections nurtured through the years in judicial procedures. Instead, the dissent would have the court hold it is of no concern that the insured has not read the language by which these rights have been lost.
All of these considerations persuade me that this court should not adopt the involuntary arbitration rule contended for by the dissent, now or in the future.
HARRIS, J., joins in this special concurrence.