OPINION
In this original proceeding, relator Weeks Marine, Inc. (“Weeks Marine”) seeks a writ of mandamus directing the respondent, Levi Benton, presiding judge of the 215th District Court of Harris County, (1) to vacate (a) his October 31, 2006 order denying Weeks Marine’s motion to compel arbitration and (b) his May 3, 2007 order denying Weeks Marine’s motion for reconsideration of the October 31 order, and (2) to stay court proceedings and compel the parties to arbitration of their dispute(s). We grant the petition in part and deny in part.
UNDERLYING FACTS AND PROCEDURAL HISTORY
Jose Jimenez was injured in April, 2006, on a deck barge in a shipyard during the course and scope of his employment with Weeks Marine. Several days after the injury, Jimenez executed a Claim Arbitration Agreement (“the Agreement”) in which he agreed to arbitrate any claims arising from his injury in exchange for Weeks Marine’s agreeing to advance certain sums to Jimenez. Under the Agreement, the advances were to be credited against any recovery Jimenez may ultimately have against Weeks Marine, whether by settlement or award, arising from the injury. The Agreement called for the advances to be paid from the date Jimenez was injured until the earlier of (1) his being declared fit for duty; (2) his reaching maximum medical improvement; or (3) six months of payments.
Two months after the incident giving rise to his injury, Jimenez brought suit against Weeks Marine under the Jones Act and general maritime law, asserting that Weeks Marine’s negligence and the unseaworthiness of its vessel caused his injury. Jimenez refused Weeks Marine’s demand to submit the claims to arbitration, although he continued to accept payment of advances under the Agreement. Weeks Marine paid the advances for six months, with a total of $20,602.50 paid to Jimenez.
Weeks Marine filed a motion to compel arbitration in the trial court, which denied the motion after briefing and a hearing. Approximately three months later, Weeks Marine filed a motion for reconsideration of its motion to compel arbitration. Weeks Marine’s motion for reconsideration was based on a then-new decision of the United States Court of Appeals for the Fifth Circuit, in which that court affirmed an order requiring an injured employee to arbitrate claims under a post-injury agreement similar to the Agreement at issue in this case. After additional briefing and another hearing, the trial court denied the motion for reconsideration and refused to alter its order denying Weeks Marine’s motion to compel arbitration. Weeks Marine then filed this mandamus proceeding, seeking relief from the orders denying its motion to compel arbitration and its motion for reconsideration.
STANDARD OF REVIEW
Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion when the abuse cannot be remedied by appeal.
Walker v. Packer,
If the Agreement is not excepted from FAA coverage, so that mandamus relief is at least theoretically available, Weeks Marine’s right to such relief depends on whether the trial court abused its discretion by refusing to compel arbitration. On mandamus review of factual issues, a trial court will be held to have abused its discretion only if the party requesting mandamus relief establishes that the trial court could have reached but one decision (and not the decision it made).
Johnson v. Fourth Court of Appeals,
ISSUES PRESENTED
Jimenez contends that the Agreement is excluded from the FAA by virtue of Section 1 of the statute. Section 1 states, in pertinent part, “nothing herein contained shall apply to contracts of employment of seamen.” See 9 U.S.C.A. § 1 (1999). As explained below, we conclude that (1) the Agreement is not a contract of employment of a seaman, (2) the Agreement is subject to the FAA, and therefore (3) mandamus is a proper procedure by which Weeks Marine may obtain relief from the trial court’s refusal to compel arbitration of Jimenez’s claims.
Having thus determined that Weeks Marine is properly before this court by original proceeding for writ of mandamus, we next address whether the trial court abused its discretion in denying the motion to compel arbitration. In the trial court, in opposition to Weeks Marine’s motion to compel arbitration, Jimenez contended that the Agreement is not enforceable under the FAA because:
• post-injury agreements between a seaman and his employer are invalid under Section 5 of the Federal Employers’ Liability Act;
*854 • the Agreement does not meet the stringent standards applied by the United States Supreme Court to agreements that diminish a seaman’s substantive rights; and
• under Texas law, the Agreement is procedurally and substantively unconscionable.
The trial court addressed only the first of these contentions in its order denying arbitration, but the order provides that arbitration is denied “[f]or reasons not expressly limited hereto.” An order denying arbitration must be upheld if it is proper on any basis considered by the trial court.
In re H.E. Butt Grocery Company,
ANALYSIS
A. Is the Agreement a contract of employment of a seaman and, therefore, unenforceable under the FAA? 4
As a preliminary matter, Weeks Marine asserts that the trial court improperly placed the burden on Weeks Marine to prove that the Agreement was not subject to exclusion under the FAA. The order denying arbitration states:
Weeks offers no evidence to establish what is within and without “plaintiffs employment contract.” While this Court does not find the [Agreement] Weeks seeks to enforce here to be within any such contract, it was Weeks [sic] burden to establish that it was not. They failed to do so.
Weeks Marine disputes the trial court’s allocation of the burden of proof and contends that a party seeking to avoid arbitration under the FAA bears the burden of establishing applicability of the Section 1 exclusion, because federal law favors arbitration. 5 According to Weeks Marine, in this case, Jimenez properly bears the burden of establishing that the Agreement is a contract of employment.
Whether the burden was on Weeks Marine to prove the Agreement is not a contract of employment or on Jimenez to prove that it is (and we do not decide this issue), the Agreement, as a matter of law and on its face, is not a contract of employment. In describing the purpose of the Agreement, the parties refer to employment only in the past tense: “I was employed by You”; “You were the owner and/or operator of the vessel and/or I was your employee.” The Agreement does not address or define any terms of employment, nor does it establish or modify an employment relationship.
Jimenez insists the Agreement constitutes at least a modification of his employ *855 ment contract. The amount of advances due under the Agreement is “fifty percent (50%) of the gross wages (regular and overtime) I would have otherwise earned based upon my earnings history immediately prior to my accident of April 29, 2006.” Jimenez contends Weeks Marine effectually continued to pay him under his employment contract by tying the amount of advances under the Agreement to his wages. Jimenez further argues the Agreement is “employment related” because Weeks Marine stated in the cover letter transmitting the Agreement to Jimenez that advances would be “in addition to the obligatory $20 daily maintenance”; “retroactive to the date of your last work day”; and “against ... claims for wages or other compensation due.”
To determine whether the Agreement is a “contract of employment,” Jimenez asks us to focus solely on the presence of employment-related words in the Agreement and in a transmittal letter — “work day,” “wages,” “maintenance and cure” — instead of on the purpose and meaning of the Agreement itself. Jimenez offers, and we find, no support in the law for such an approach, and we decline to adopt it. Read in its entirety, with effect given to the meaning of all provisions, we conclude the parties intended the Agreement to be an agreement to arbitrate claims in exchange for voluntary payment of a portion of the potential value of those claims. The advances contemplated by the Agreement (and actually received by Jimenez) do not constitute wages, because, as Jimenez concedes, he performed no work for Weeks Marine after his injury. The Agreement is not somehow transformed into a contract of employment merely because it provides for advances to be calculated from Jimenez’s historical wages or credited against any eventual recovery for lost wages under the Jones Act. Likewise, the Agreement is not transformed into a contract of employment by virtue of Weeks Marine’s choosing to assure Jimenez, in a letter, that any advances under the Agreement would be in addition to the maintenance and cure to which he was already fully entitled. 6
As a matter of law, the Agreement is not a contract of employment and thus not excluded from the FAA. 7 We now consider *856 whether the trial court’s refusal to compel arbitration constitutes an abuse of discretion.
B. Did the trial court abuse its discretion by refusing to compel arbitration of Jimenez’s claims against Weeks Marine?
A party seeking to compel arbitration must first establish the existence of a valid arbitration agreement and that the claims asserted are within the scope of the agreement.
FirstMerit Bank,
Jimenez does not dispute that he signed the Agreement and that, if enforceable, it covers the claims he asserts in the underlying lawsuit. In opposition to Weeks Marine’s motion to compel arbitration, however, Jimenez asserts a number of defenses to enforceability. We will address each of his defenses in turn.
1. Is the Agreement invalid under Section 5 of the Federal Employers’ Liability Act?
Jimenez cites two United States Supreme Court eases for the proposition that “post-injury agreements have been determined to be invalid under Section 5 of the Federal Employers’ Liability Act [‘FELA’].”
See Boyd v. Grand Trunk Western Railroad Co.,
In
Duncan,
an employer paid $600 to an injured employee in exchange for the employee’s agreement to try to resolve any attendant disputes without litigation and to return the money before he filed a lawsuit. The Court held that the agreement was invalid under FELA Section 5 because requiring the destitute employee to return the $600 before filing suit had the effect of exempting the employer from liability.
The later case of
Boyd
involved a post-injury agreement under which the employee received cash advances against future recovery in exchange for his agreeing to
*857
bring any suit against the employer only in certain named venues in Michigan. The employee eventually filed suit in Illinois state court. The employer filed suit against the employee in Michigan, seeking to enforce the agreement and to enjoin prosecution of the Illinois action. Concluding the agreement purported to exempt the employer from (the liability of) suit in FELA-designated venues, the Court held on certiorari that Section 5 precluded enforcement of the agreement against the employee.
Jimenez argues that the reasoning of
Boyd
and
Duncan
is applicable to preclude enforcement of the Agreement because the Jones Act extends FELA rights to seamen.
8
The trial court agreed, stating in its order denying arbitration, “Even if Weeks did establish that [the Agreement] was outside of any employment contract [and thus subject to the FAA], this Court would still deny the motion based on the reasoning set out in the cases relied on by plaintiff,
[Boyd
and
Duncan
].” Several weeks later, Weeks Marine asked the trial court to reconsider its order on the basis of the just-issued
Terrebonne
decision, in which the Fifth Circuit held that FELA Section 5 does not invalidate a seaman’s agreement to arbitrate personal injury claims.
Terrebonne v. K-Sea Transportation Corp.,
The Fifth Circuit read
Boyd
to hold that the venue provisions of FELA are protected under FELA Section 5 because such venue is a “liability created by this [FELA] chapter.” The court concluded that neither
Boyd
nor FELA Section 5 precluded enforcement of the agreement in
Terrebonne
because the agreement required the employee to give up nothing that had been “created by [FELA].”
Terrebonne,
In addition, the court distinguished
Boyd
because it did not involve a federal statute that authorized and provided for enforcement of the agreement at issue. The agreement in
Terrebonne
was governed by the FAA and “thus the issues
‘must
be addressed with a healthy regard for the federal policy favoring arbitration.’ ”
Terrebonne,
We conclude the Agreement requires Jimenez to give up nothing that was “created by [FELA].” FELA Section 5, therefore, does not apply to invalidate the *858 Agreement even under the reasoning of Boyd and Duncan We further question the applicability of such reasoning to this case, in which the issues must be considered with a healthy regard for the federal policy favoring arbitration Accordingly, we hold the trial court misapplied FELA Section 5, Boyd, and Duncan to deny Weeks Marine’s motions to compel arbitration and for reconsideration, thereby ■ abusing its discretion.
2. Is the Agreement invalid because it improperly diminishes a seaman’s substantive rights?
Jimenez contended below, and argues here, that the Agreement is not enforceable because it does not meet “the stringent standard applied to seaman’s agreements that diminish the seaman’s substantive rights.”
9
For this proposition, Jimenez cites
Garrett v. Moore-McCormack Co.,
Weeks Marine claims that Garrett is applicable only to release agreements, but the court’s reasoning is not so limited and in fact appears applicable to all agreements between seamen and employers. Nonetheless, there are two factors that weigh against subjecting the Agreement in this case (or any seaman’s arbitration agreement) to the scrutiny espoused in Garrett. First, there is a strong federal policy in favor of arbitration agreements, even in the maritime context (except in the employment contracts of seamen), 10 whereas there was no such policy favoring release agreements under consideration in Garrett. On that basis, the reasoning used is not fully applicable to the context at hand. Second, subjecting seamen’s arbitration agreements to Garrett scrutiny runs afoul of the rule that FAA-governed arbitration agreements may be invalidated only on grounds that apply to any contract. 11
Finally, even if we accept Jimenez’s contention that Weeks Marine must prove, under Garrett, that the Agreement is fair *859 to Jimenez, the details of the exchange are in the record. Jimenez is incorrect in his conclusion that the exchange was “grossly unbalanced.” Jimenez claims that “[a]n advance on money owed is by no means adequate consideration in exchange for giving up [the right to a jury trial and appellate review], much less the ‘extraordinary benefits’ owed for those sacrifices under Garrett.” However, until the claims are adjudicated in Jimenez’s favor, the money is not “owed.” Considering the strong federal policy favoring arbitration, the Agreement would not fall shy of the “stringent standard” espoused in Garrett, were such standard applicable.
The order denying arbitration cannot be sustained on the basis that the Agreement fails to withstand Garrett scrutiny, because (1) Garrett does not apply and (2) if Garrett did apply, the record does not support a conclusion that Jimenez received inadequate consideration for entering into the Agreement.
3. Is the Agreement substantively unconscionable under Texas law and thus unenforceable against Jimenez?
Jimenez argues that denial of Weeks Marine’s motion to compel arbitration was proper under the FAA because the Agreement is unconscionable under Texas law. There are two types of uncon-scionability: procedural (fairness of the circumstances surrounding adoption of the arbitration provision) and substantive (fairness of the arbitration provision itself).
See, e.g., In re Luna,
The test for substantive uncon-scionability is whether, “given the parties’ general commercial background and the commercial needs of the particular trade or case, the clause involved is so one-sided that it is unconscionable under the circumstances existing when the parties made the contract.”
In re FirstMerit Bank, N.A.,
Assuming, without deciding, that this evidence is competent to show the likely cost of arbitration for this dispute, Jimenez must still show the likelihood of incurring such costs.
Green Tree Financial Corp.-Ala. v. Randolph,
For the reasons stated above, we hold the order denying arbitration cannot be sustained on the basis that the Agreement is substantively unconscionable.
4. Is the Agreement procedurally unconscionable under Texas law and thus unenforceable against Jimenez?
One of Jimenez’s defensive contentions is that the Agreement is procedurally unconscionable because “it was procured under improper circumstances and by strong-arm means.” Specifically, Jimenez asserts that (1) he did not understand the Agreement, (2) he would not have signed if he had been told that he was giving up his right to a jury trial, (3) Weeks Marine’s representative told him he would receive no benefits unless he signed the document (which he says she described as “paperwork”), and (4) Weeks Marine pushed the Agreement on Jimenez when he was still recuperating and under stress from his injury. Weeks Marine disputes these assertions but further argues that a claim of procedural unconseionability will not preclude arbitration, because procedural unconseionability is properly a question for the arbitrator, not the court. In this regard, Weeks Marine relies on
Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
In
Prima Paint,
a party resisted arbitration on the basis that it had been fraudulently induced to sign the contract containing the arbitration provision. Settling a conflict among the circuit courts of appeal, the United States Supreme Court held that in addressing a motion to compel arbitration and any opposition thereto, “a federal court may consider only issues relating to the making and performance of the agreement to arbitrate.”
The parties take opposing positions on whether Jimenez’s procedural unconscion-ability claim relates to the “contract as a whole” or to the “arbitration provision.” Weeks Marine suggests that the Agreement is a “larger” contract, calling for the payment of advances to Jimenez, into
*861
which was inserted an arbitration clause. This characterization is belied first by the title of the Agreement, which is “Claim Arbitration Agreement.” Plus, Weeks Marine ignores that its offer to pay advances on Jimenez’s claims constitutes the consideration for Jimenez’s agreeing to arbitrate those claims, which is the primary, if not exclusive, reason for the Agreement.
Cf. In re H.E. Butt Grocery Company,
Our holding that the procedural uncon-scionability issue in this case is for the trial court to decide does not rest exclusively on our conclusion that the issue is directed at the agreement to arbitrate rather than at the “larger” agreement. In the cases establishing and following the “rule” that defenses aimed at the contract as a whole are to be determined by the arbitrator, not the court, the contract at issue contained a broad arbitration provision. In
Prima Paint,
for example, the provision at issue called for arbitration of “[a]ny controversy or claim
arising out of or relating to this Agreement,
or the breach thereof.”
In this case, the arbitration clause provides:
[Weeks Marine is] prepared to make voluntary advances against settlement of any claim that could arise out of the personal injury/illness claim I have made including, but not limited to, claims for wages or other compensation due; claims for breach of any contract or covenant; tort claims; Jones Act claims, general maritime claims, claims for discrimination or harassment on bases which include but are not limited to race, sex, sexual orientation, religion, national original, age, marital status, disability or mental condition; claims for benefits and claims for violation of any federal, states [sic] or other governmental statute, ordinance, regulations or public policy, under the doctrine of unseaworthiness, Jones Act, or any other applicable law, provided [that Jimenez] agree[s] to arbitrate any such claim....
Jimenez did not, by this provision, agree to arbitrate any claims that may arise as a result of entering into the Agreement; he agreed only to arbitrate claims arising out of the injury he suffered during his employment with Weeks Marine. Jimenez’s defensive claim — that he was induced to sign the Agreement by unconscionable means on the part of Weeks Marine — thus does not fall within the scope of the arbitration agreement between the parties. Consequently, under
Prima Paint
and its progeny, even if the procedural uncon-scionability claim were directed at the contract as a whole (as Weeks Marine argues), the issue is
not
one for the arbitrator because the arbitration provision does not cover that issue.
Cf. Howsam v. Dean Witter Reynolds, Inc.,
Finally, Jimenez suggests that in denying arbitration and reconsideration, the trial court implicitly found that Weeks Marine used improper means to procure the Agreement, which was thus proeedurally unconscionable. Any such finding would necessarily have been based on the court’s accepting the Jimenezes’ affidavit testimony and disregarding the affidavit testimony of Teresa Olivo, Weeks Marine’s representative.
15
When faced with conflicting affidavits, however, a trial court may not adjudicate defenses to enforceability of an arbitration agreement without an evidentiary hearing.
Jack B. Anglin Co., Inc. v. Tipps,
The order denying arbitration cannot be sustained on the basis that the Agreement is proeedurally unconscionable, although that issue is properly to be resolved by the court. If, as Jimenez contends, the trial court implicitly found that the Agreement is proeedurally unconscionable, it was an abuse of discretion for such finding to be made without an evidentiary hearing.
CONCLUSION
The order denying arbitration cannot be sustained on any ground considered by the trial court. Accordingly, we conditionally grant Weeks Marine’s petition insofar as it requests us to instruct the trial court to vacate the order. We are confident the trial court will vacate its October 31, 2006 order denying Weeks Marine’s motion to compel arbitration and its May 3, 2007 order denying Weeks Marine’s motion for reconsideration. The writ of mandamus will issue only if the trial court fails to comply.
The procedural unconscionability issue is not, as Weeks Marine contends, for the arbitrator to decide. The issue is for the trial court to decide, 17 but the trial court has either not made a decision or made a decision on disputed affidavit testimony without the requisite evidentiary hearing. In either event, we are unable to direct entry of an order compelling arbitration while disputed issues of fact remain unresolved. Accordingly, we deny the petition insofar as Weeks Marine requests us to instruct the trial court to compel arbitration.
Notes
. 9 U.S.C. § 1 et seq.
. But see In re D. Wilson Constr. Co.,
. Tex. Civ. Prac. & Rem.Code § 171.098(a)(1).
. Weeks Marine does not dispute that Jimenez is a seaman for purposes of FAA Section 1. Thus, our analysis concerns only whether the Agreement constitutes a contract of employment.
. In this regard, Weeks Marine cites
Green Tree Financial Corp.-Ala. v. Randolph,
. Further, even if the Agreement can be characterized as "employment related,” as Jimenez argues, only "contracts
of
employment of seamen” are excluded from the FAA. 9 U.S.C.A. § 1 (1999) (emphasis added).
See Terrebonne v. K-Sea Transportation Corp.,
. In opposition to Weeks Marine’s motion to compel arbitration and pending petition for writ of mandamus, Jimenez cites
Brown v. Nabors Offshore Corp.,
.
Cox v. Roth,
.
But see Terrebonne, 477
F.3d at 284 (holding that by agreeing to submit Jones Act claim to arbitral rather than judicial forum, seaman does
not
forgo substantive rights);
Larrisquitu,
.
Terrebonne,
. 9 U.S.C.A. § 2 (1999) (providing that written arbitration provision in maritime or other transaction involving commerce "shall be valid, irrevocable, and enforceable, save upon any such grounds as exist at law or in equity for the revocation of any contract”).
See also Doctor’s Assocs., Inc. v. Casarotto,
; The Court's holding was based on Section 4 of the FAA, which states, in pertinent part: “[On request to compel arbitration, t]he court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration ... is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.... If the making of the arbitration agreement ... be in issue, the court shall proceed summarily to the trial thereof." 9 U.S.C.A. § 4 (1999); see Prima Paint, 388 U.S. at n. 11.
. Weeks Marine cites
In re Halliburton Co.,
.
See also, e.g., Buckeye Check Cashing,
. Jimenez testified that "[Ms. Olivo] very clearly told me that Weeks would not pay for anything unless I signed the paperwork and ‘got all the paperwork in.’ ... I was very worried and concerned that I would lose not only my income but my medical benefits. That is the only reason I signed the paperwork Ms. Olivo sent me. I did not understand that I would be giving up a right to a jury trial, and I would not have signed the paperwork if I had been told this.” Olivo testified, "At no time did anyone represent that [Jimenez’s] maintenance and cure was contingent upon his agreement to arbitrate. On the contrary, Mr. Jimenez understood that by agreeing to arbitrate, he would receive additional payments as an advance against a possible award. His only concern was how soon it would be before he received the additional payments.”
. See also In re Washington Mutual Finance, L.P.,
. This court is forbidden, of course, to decide disputed areas of fact.
Brady v. Fourteenth Court of Appeals,