concurring in judgment only. A plurality of this court has, sua sponte, taken this case as an opportunity to pronounce law on an issue neither briefed by the parties nor discussed by any court below. Although I am not troubled by the end result achieved by the plurality, I am disturbed by the “law” the plurality gratuitously pronounces in reaching its decision. Accordingly, I concur in the judgment only.
I
I am somewhat fascinated to learn that the plurality considers “nonbinding arbitration” to be an oxymoron and “binding arbitration” to be a redundancy. Not only will this be news to the parties in these cases, the trial courts and the courts of appeals below (not to mention the whole of the Ohio judiciary), it will no doubt come as a surprise to the General Assembly, which has used one or both of the terms “binding” and “nonbinding” to modify arbitration in no fewer than ten sections of the Ohio Revised Code.10 Indeed, I am curious *720how, under the plurality’s formulation, one would construe R.C. 2711.21 — a section that provides for nonbinding arbitration of a medical, dental, optometric or chiropractic claim upon filing of such claim and subsequent agreement of the parties, and that explicitly acknowledges the parties’ rights to contract for binding arbitration over the same type of claim. In my view, the narrow construction of the term “arbitration” advocated by the plurality adds nothing to the development of the law. Indeed, it detracts from a widely accepted construction of that term.
The term “arbitration” simply describes a process in which a neutral third party renders a decision on an issue or case in dispute after a hearing during which the disputants are given an opportunity to be heard. Black’s Law Dictionary (6 Ed.1990) 105. “Mediation,” on the other hand, is a “[p]rivate, informal dispute resolution process in which a neutral third person, the mediator, helps disputing parties to reach an agreement. * * * ” Id. at 981. Unlike the arbitrator, “[t]he mediator has no power to impose a decision on the parties.” Id.
Contrary to the assertions of the plurality, the degree to which parties agree to be bound by an arbitrator’s decision flows not from the incantation of the word “arbitration,” but rather from the parties’ intent as expressed through an arbitration agreement. The public policy of this state does not preclude parties from agreeing to bring before an arbitrator or panel of arbitrators, prior to the initiation of litigation, a particular set of issues or disputes that may arise between them, or from agreeing further that each party will retain the right to disregard any decision reached through arbitration and seek relief in court in a trial de novo. To the contrary, as evidenced by the passage of R.C. Chapter 179, the promotion of nonbinding arbitration as one of a panoply of alternative dispute resolution techniques is presently favored public policy in our state.
Although an arbitrator’s decision under an agreement for nonbinding arbitration, even if accepted by the parties, may not be enforceable under R.C. Chapter 2711, see Ohio Council 8, AFSCME v. Ohio Dept. of Mental Health (1984), 9 Ohio St.3d 139, 9 OBR 388, 459 N.E.2d 220, it nevertheless may be enforceable as a matter of contract law if, after the decision is rendered, the *721parties agree to abide by it, thus waiving their rights to proceed to litigation. Additionally, the existence of a valid agreement to arbitrate, whether that agreement provides for binding or nonbinding results, should provide a trial court, pursuant to R.C. 2711.02 or 2711.03, with the authority to stay a suit or proceeding brought upon an issue that would be arbitrable under that agreement, or to directly compel arbitration under the arbitration agreement.
Unlike the plurality, I believe the public policy of this state reflects a growing desire to have parties attempt to resolve their disputes before seeking a juridical solution to their problems, even if the only step they have agreed upon is arbitration that they can disregard if they choose. In contrast to mediation, where the parties are guided to solve their problems on their own, arbitration provides the parties with a definitive view by a neutral third party of the merits of their conflict, after a full hearing that can include testimony under oath, R.C. 2711.06, and the use of depositions, R.C. 2711.07. In the case of nonbinding arbitration, the salutary effects of such a procedure far outweigh any perceived need for finality that the plurality equates with the use of the term “arbitration.”
Accordingly, if the issue were properly presented to the court, I would hold that an agreement that provides for nonbinding arbitration will be enforced to the extent possible under the law, and the parties will be held to their agreement to arbitrate unless the agreement is unconscionable or otherwise revocable as a matter of law or equity. Thus, with the exception of the provisions of the Revised Code which concern the issuance, enforcement, modification, or vacation of, as well as judgment upon or appeal from an arbitration award, none of which is relevant in the context of nonbinding arbitration,11 I would construe the remaining provisions liberally to include nonbinding arbitration within their scope. See Comment to R.C. 2711.01 (supporting a liberal construction).
II
Although I would find an agreement for nonbinding arbitration enforceable to the extent that the parties would be required to arbitrate before litigating, I nevertheless would decline to enforce the particular agreement in case Nos. 91-764 and 91-1042 because the provision is unfair and unconscionable. Had the agreement incorporated some sense of parity in the positions of the parties by permitting a trial de novo for arbitration decisions that were *722unfavorable to the insured, I would not be as inclined to overturn what is otherwise a valid, arm’s-length agreement.
A clause such as the one involved here is unconscionable when the determination of whether the arbitration is binding turns on an issue of causation or liability rather than the amount of damages. Take, for example, a case where the damages are conceded to exceed $200,000, but liability is disputed. Under the arbitration agreement at issue here, the carrier would never be bound by any decision in favor of the policyholder, because such a decision would result in a finding of damages exceeding the statutory minimum. On the other hand, the policyholder will inevitably be bound by a decision adverse to him, because the only way an arbitrator could award less than the statutory minimum is if there is a finding of no liability.12 Thus, in such cases the carrier is never bound by an adverse decision, and the policyholder is always bound. This is “binding” arbitration for one party and “nonbinding” arbitration for the other. Such a provision is manifestly unfair and unconscionable and must not be enforced.
With respect to case Nos. 91-2105 and 91-2333, I reach a slightly different conclusion. Although the clause in that case is virtually identical to that involved in the first case, the portion of the arbitration agreement that I view as unconscionable is not directly in issue. Instead of striking the whole agreement, I would give effect to as much of the parties’ intent as possible. Thus, I would permit a trial de novo by the insurer after arbitration, recognizing that at the core of the parties’ agreement was an intention to enter into arbitration and to be bound by some arbitration outcomes and not be bound by others. Certainly, the arbitration outcome in that case was well beyond the statutory minimum and one that the parties would have expected to litigate. Binding the insurer to the arbitrators’ decision under these facts is clearly not a proper remedy.
Unlike the plurality, I do not view agreements which provide for arbitration that is binding in part arid nonbinding in part as contravening public policy. I also do not view such agreements as inherently unconscionable. Parties to *723insurance contracts should be permitted to agree that some arbitration decisions will be binding and others will not, provided that one side is not given an unfair advantage over the other.13 Because mutuality does not exist when the clause is applied to the facts of the Schaefer case herein, and because binding the parties to the arbitration results is an inappropriate remedy in the FallonMurphy case at bar, I concur that each action must now proceed to trial.
Ill
The zeal of the plurality to “make new law” is dangerous. Each time this court chooses to ignore the questions certified by the courts of appeals and decides cases based upon issues neither raised by the parties nor considered by the courts below, we tread upon jurisprudential quicksand, and the more we thrash, the deeper we sink. At the least, we must attempt to face the tough issues before us and not engage in judicial legislation. When we do not meet the challenges directly before us, we confuse the law, and we give new meaning to the phrase “court of last resort.”
Courts from several other states have examined the types of arbitration clauses at issue, concluding that they are against public policy and are thus unenforceable.14 We can and should do the same.
Moyer, C.J., and H. Brown, J., concur in the foregoing opinion.. See R.C. 153.63(B) (“ * * * The arbitration [of a dispute concerning a contractor escrow account] shall be binding on all parties.”); R.C. 179.01(B)(1) (defining a “dispute resolution and conflict management program” as “ * * * including but not limited to * * * nonbinding arbitration * * * ”); R.C. 306.12 (authorizing any county transit board to negotiate certain arrangements which may include “ * * * provisions for the submission of labor disputes to final and binding arbitration”); R.C. 306.35(X) (authorizing similar arrangements for the board of a regional transit authority); R.C. 2711.21(A) (providing for nonbinding arbitration of a medical, dental, optometric or chiropractic claim upon filing of such claim and agreement of the parties); R.C. 2711.22 (providing for enforcement of a written contract between a physician or hospital and a patient to settle disputes by binding arbitration); R.C. 2711.24 (specifying the arbitration agreement form to be used for binding arbitration of medical claims); R.C. 4117.09(B)(1) (providing that a written collective bargaining agreement between state employers and employ*720ees shall contain a provision for a “ * * * grievance procedure which may culminate with final and binding arbitration of unresolved grievances, and disputed interpretations of agreements * * *”); R.C. 4117.10(A) (specifying that where a grievance procedure under a public employees’ collective bargaining agreement provides for final and binding arbitration of grievances, such grievances are not appealable to the State Personnel Board of Review or civil service commissions); and R.C. 5126.23(H) (providing that a county board of mental retardation and developmental disabilities and certain of its employees may agree to submit to binding arbitration issues regarding the removal, suspension, or demotion of such employees).
. One feature that distinguishes binding from nonbinding arbitration is that the former results in an award while the latter does not.
. In case Nos. 91-764 and 91-1042, the arbitrators considered whether the injuries complained of by one of the insured were attributable to the automobile accident or to a preexisting condition. The arbitrators were thus faced with an issue of liability — whether the accident caused the injuries forming the greater portion of the claim against the policy. Their ruling, awarding essentially nominal damages to the insured, highlights the inequality of the parties’ abilities to obtain a de novo review of the arbitration award. The inequality arises when there is great disparity between the damages awarded if total liability is found and the damages awarded (if any) when minimal or no liability is found. In that case, the expectations of the insurer and the insured as to the magnitude of the claims greatly diverge, and the arbitration provision becomes a “heads I win, tails you lose” proposition.
. Because I am neither an actuary nor a risk analyst, I cannot suggest where parties to an arbitration agreement should draw the line so that mutuality in the agreement exists. As discussed supra, one must not draw the line in cases in which liability is an issue in such a manner that the arbitration becomes binding upon the insured and nonbinding upon the insurer.
Additionally, I believe that the provision in question would not be unconscionable in a case where liability or causation is undisputed but the amount of damages is not. Certainly parties to an insurance contract could agree to be bound by arbitration results for cases involving a relatively small amount of damages. A clause that provides that the arbitration will be binding only if certain arbitration outcomes occur, however, is more likely to fail under the law than a similar clause that binds the parties to the arbitration result only if the insured’s demand against the policy is less than a certain minimum, or if the parties jointly believe that the damages are less than that minimum. Indeed, a clause that, in effect, permits an arbitrator to determine whether his or her decision is binding is, in my view, inherently suspect.
. See, e.g., Mendes v. Automobile Ins. Co. of Hartford (1989), 212 Conn. 652, 563 A.2d 695; Schmidt v. Midwest Family Mut. Ins. Co. (Minn.1988), 426 N.W.2d 870; Pepin v. American Universal Ins. Co. (R.I.1988), 540 A.2d 21. Accord Field v. Liberty Mut. Ins. Co. (D.Haw.1991), 769 F.Supp. 1135 (applying Hawaii law and finding arbitration clause void as against public policy).