(dissenting). The central issue in these two cases is whether the Due Process Clauses of the United States Constitution,1 and the Michigan Constitution,2 which bar the state from depriving any person of life, liberty, or property without due process of law, are violated by the medical malpractice arbitration act of 1975, MCL 600.5040 et seq.; MSA 27A.5040 et seq. I am persuaded that they are because the act unconstitutionally deprives these plaintiffs of their due process rights to a fair hearing before an impartial decisionmaker.3
Accepting in principle the analytical approach *476advanced by my brother Ryan, I am convinced that (1) plaintiffs have been deprived of the constitutionally cognizable right to a fair hearing before an impartial decisionmaker, (2) because of state action, (3) without due process of law.4
I
While it is difficult to know whether to classify the right to a fair hearing before an impartial decisionmaker as a liberty or property right, there can be no doubt that it is a constitutionally cognizable right. Indeed, a basic tenet of due process is that decisionmakers must be unbiased and impartial.5 As the Supreme Court stated in In re Murchison, 349 US 133, 136; 75 S Ct 623; 99 L Ed 942 (1955):
"A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that 'every procedure which would offer a possible temptation to the average man as a judge * * * not to hold the *477balance nice, clear and true between the State and the accused, denies the latter due process of law.’ Tumey v Ohio, 273 US 510, 532; 47 S Ct 437; 71 L Ed 749; 50 ALR 1243 (1927). Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way 'justice must satisfy the appearance of justice.’ Offutt v United States, 348 US 11, 14; 75 S Ct 11; 99 L Ed 11 (1954).”
Thus, the potential for actual bias on the part of the decisionmaker may be too great in some circumstances for our system of justice to risk, despite the fact that such potential might never be realized.
One situation which presents too great a probability of actual bias is when the decisionmaker has a direct or substantial pecuniary interest in the outcome of the controversy. Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352 (1975). This is what the plaintiffs claim exists here, i.e., that a health-care provider who must decide a medical malpractice case will be inclined to minimize the size of any award because the number and size of malpractice awards directly affect the availability and cost of medical malpractice insurance coverage.6
There is no dispute that the medical malpractice arbitration act was the legislative response to an alleged malpractice insurance crisis which supposedly resulted from the spiraling costs of insurance coverage for health-care providers and the reduc*478tion in actual availability of such coverage.7 Submission of malpractice controversies to arbitration was perceived as a way to reduce the costs of such disputes because arbitration is less complicated and quicker than litigation and usually results in a decision that is final. A reduction in the costs of bringing malpractice disputes to a resolution was to then result in a reduction in the costs of malpractice insurance coverage for health-care providers. However, since the relationship between malpractice controversies and malpractice insurance rates is so direct, it is clear that a reduction in the number and size of malpractice awards, in addition to a reduction in the costs of resolving such disputes, would be of substantial benefit to those paying for the cost of malpractice insurance coverage.
The cost of malpractice insurance premiums has a significant effect on a health-care provider’s ability to practice in the medical profession. If the number and size of malpractice awards directly affect the cost of these premiums so that the premiums are more costly after an increase in the number and size of such awards, then health-care providers have a direct pecuniary interest in seeing that the number and size of malpractice awards remain small, and they have the opportunity to further this interest when they sit as decisionmakers in medical malpractice cases.
The fact that the direct effect of a particular malpractice award upon a single health-care provider’s insurance rate may be minimal does not *479make the health-care provider’s potential for bias on the basis of a pecuniary interest remote enough to be constitutionally permissible. Since the overall effect of malpractice claims and awards significantly affects insurance rates, the threat of a subliminal systematic bias exists in the medical profession. This results in a temptation for the medical-member decisionmaker to forget the requisite burden of proof and fail to hold the balance true and clear between the adverse parties.8
The interests of health-care providers may vary according to the situation in which they find themselves. When a patient is sick and in need of treatment, the health-care provider’s interests are clearly not adverse to the patient. At this point the patient’s welfare is undoubtedly of paramount importance to the members of the medical profession. However, in a malpractice case the focus of attention is no longer on how to make the patient well; rather, it is on whether the patient is entitled to compensation for any mistreatment received from a member of the medical profession and, if so, the amount of compensation due. Members of the medical profession are no longer in a position to use their skills to improve the patient’s health. At this point they are solely in a position of choosing whether to award the patient any money for alleged wrongful medical treatment. I believe that in this situation the interests of the health-care providers in relation to those of the patient change and, in light of the effect a malpractice award may have on their pecuniary interests, the health-care providers may be expected to align themselves with and favor a member of their own profession.9
*481This is not to say that health-care providers as a group are not fair-minded. However, in the context of medical malpractice litigation, their function as arbitrators and their frame of reference may make them partisans of their professional colleagues, producing partisan results. This situation thus presents too high a risk of actual bias on the part of the medical-member decisionmakers to be constitutionally permissible.10
In light of this potential for bias on the part of health-care providers deciding malpractice cases, I conclude that the medical malpractice arbitration act’s requirement of a health-care provider in the composition of the arbitration panel violates the plaintiffs’ constitutional right to a fair hearing before an impartial decisionmaker.
*482II
With regard to the second step of the relevant inquiry, I believe that, under federal constitutional law, these cases can be distinguished from Flagg Bros, Inc v Brooks, 436 US 149; 98 S Ct 1729; 56 L Ed 2d 185 (1978), and Blum v Yaretsky, 457 US 991; 102 S Ct 2777; 73 L Ed 2d 534 (1982), i.e., there is impermissible state action present in these cases.
First, as the Supreme Court noted in Blum, pp 1003-1004:
"This case is obviously different from those cases in which the defendant is a private party and the question is whether his conduct has sufficiently received the imprimatur of the State so as to make it 'state’ action for purposes of the Fourteenth Amendment. See, e.g., Flagg Bros, Inc v Brooks. * * * [Nevertheless,] th[o]se types of cases shed light upon the analysis necessary to resolve the present case.
"[Although the factual setting of each case will be significant, our precedents indicate that a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such signiñcant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. Flagg Bros, Inc v Brooks”. (Emphasis added.)
These cases fall under the above-emphasized language.
Second, although it is not a truly distinguishing feature, it appears to me that the United States Supreme Court was wrong in concluding that the procedures outlined in UCC 7-210 to enforce a warehouseman’s lien did not involve state action. Indeed, that conclusion did not easily or naturally *483follow from its prior case law. See Flagg Bros, supra, pp 168-179 (Stevens, J., dissenting). Further, the Court could have reached the same result by finding, and properly so, that the procedures authorized under UCC 7-210 did not deprive the bailor of a property right absent due process of law, i.e., that the procedures authorized to enforce the lien did comply with the constitutional right to due process. In fact, the latter seems to be the real reason for the Court’s decision.
Third, although there is no initial state action, i.e., the parties are not compelled to execute an arbitration agreement, there is state action in the execution itself and after execution, i.e., the state requires (1) certain terms to be included in the agreement, and (2) specific procedures pursuant to the agreement. Indeed, the enactment of a broad statutory scheme is an expression of the public policy of the state and, to this extent, certainly constitutes "encouragement” of arbitration agreements by the state. As this Court noted in Shavers v Attorney General, 402 Mich 554, 597; 267 NW2d 72 (1978), the Due Process Clause may be invoked only where there is a sufficiently close nexus between the action complained of and the state itself such that the state has significantly involved itself in the challenged conduct.11
*484Although a medical malpractice claimant’s initial choice to execute or not to execute an arbitration agreement will always lead to selection, free from state action, of a voluntary dispute-resolution mechanism: whether to (1) institute a lawsuit, (2) arbitrate the dispute, (3) reach some other settlement or agreement with the alleged wrongdoer, or (4) do nothing, it does not necessarily follow that statutorily mandated procedures imposed pursuant to the mechanism selected are devoid of state action.12 Indeed, when a medical malpractice claimant elects not to execute an arbitration agreement, *485instead choosing to institute a lawsuit, the state requires that numerous statutes and court rules be followed by the parties to resolve the dispute. However, no one could disagree that those procedures cannot abridge one’s constitutional rights.
Similarly, in these cases, medical malpractice claimants have elected to execute an arbitration agreement. Pursuant to that election, the state requires that "[t]he provisions of this chapter shall be applicable to the arbitration of a dispute” involving a medical malpractice claim. MCL 600.5040(1); MSA 27A.5040(1) (emphasis added). Indeed, none of the parties even has control over the terms of the arbitration agreement. MCL 600.5041(2), (3), (5), (7); MSA 27A.5041(2), (3), (5), (7) ; MCL 600.5042(2)-(4), (8); MSA 27A.5042(2)-(4), (8).13 Accordingly, it should be concluded that the procedures employed in the latter situation cannot abridge one’s constitutional rights and no convincing reasons have been advanced to the contrary. Moreover, under my brother Ryan’s analysis, it would follow that the statutes and court rules employed to resolve lawsuits could abridge litigants’ constitutional rights.
The final distinguishing feature from Flagg Bros is the arguments advanced by the parties. In Flagg Bros, the plaintiffs did not directly challenge the state-mandated procedures to enforce a warehouseman’s lien. Rather, the plaintiffs claimed that their right to procedural due process would be violated if a hearing did not precede the sale undertaken to satisfy the lien; the suit was in essence one for a declaratory judgment. Accordingly, the Supreme Court found that the state’s failure to prevent the sale prior to a hearing did *486not involve state action; there was no violation of the plaintiffs’ constitutional right to due process. Conversely, in these cases, plaintiffs are challenging the state-mandated procedures imposed to arbitrate a medical malpractice claim, specifically, that the composition of the arbitration panel deprives them of the constitutionally cognizable right to a fair hearing before an impartial decisionmaker. MCL 600.5044(2); MSA 27A.5044(2). Unlike the plaintiffs in Flagg Bros, they are not claiming, and it could not be persuasively argued, that the state’s failure to prevent arbitration amounts to a deprivation of procedural due process. State action did not compel or encourage the sale of the goods in Flagg Bros, nor does it require arbitration in these cases. Although the state can acquiesce in one’s choice of a dispute-resolution mechanism, it cannot statutorily mandate procedures pursuant to the mechanism selected which abridge constitutional rights. Consequently, it should be concluded that, under federal constitutional law, these cases involve state action.
Ill
Finally, it should also be concluded that the deprivation of plaintiffs’ right to a fair hearing before an impartial decisionmaker, pursuant to state action, is done without due process of law; a due process violation exists. Indeed, in these cases, answering the first two relevant inquiries in the affirmative necessarily leads to the conclusion that due process of law is absent. As explained in § I, the right to a fair hearing before an impartial decisionmaker "is a basic requirement of due process”. In re Murchison, supra. Thus, finding a *487deprivation of that right satisfies both the first and third inquiries under my tripartite analysis.14
IV
In conclusion, I would hold that plaintiffs have been deprived of the constitutionally cognizable right to a fair hearing before an impartial decisionmaker, because of state action, without due process of law. Accordingly, I would affirm the judgment of the Court of Appeals in Jackson but reverse its judgment in Morris and remand that case to the trial court.
Boyle, J., did not participate in the decision of this case.US Const, Am XIV.
Const 1963, art 1, § 17.
I am not unmindful of the fact that I participated in the decisions in Williams v O’Connor, 108 Mich App 613; 310 NW2d 825 (1981), and Cushman v Frankel, 111 Mich App 604; 314 NW2d 705 (1981), both of which upheld the constitutionality of the act in question. However, in Bowman v Lutz, 123 Mich App 733, 735; 333 NW2d 346 (1983), I indicated I was reconsidering my position in light of Judge Kaufman’s very persuasive reasoning in Murray v Wilner, 118 Mich App 352; 325 NW2d 422 (1982). Having revisited these opinions and others, I am now persuaded that my prior view upholding the statute was incorrect.
In contrast to the test set forth by my brother Ryan, see ante, p 452, I believe that the relevant analysis should proceed in the following order, i.e., there must be:
1) a deprivation of a constitutionally cognizable life, liberty, or property interest;
2) by the state or a private person who may be fairly treated as the state;
3) without due process of law.
Tumey v Ohio, 273 US 510, 532; 47 S Ct 437; 71 L Ed 749; 50 ALR 1243 (1927); Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352 (1975).
The affidavits of experienced underwriters of medical malpractice insurance, which are part of this record, specifically aver that any malpractice award in favor of a plaintiff affects the availability and cost of malpractice insurance coverage and thus any health-care provider would have a direct and substantial interest in the outcome of arbitrated malpractice cases.
See, e.g-, Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex L Rev 759 (1977); Abraham, Medical Malpractice Reform: A Preliminary Analysis, 36 Md L Rev 489 (1977); Comment, Michigan’s Medical Malpractice Legislation — Prognosis: Curable Defects, 55 U of D J of Urban Law, p 309 (1978).
Tumey v Ohio, 273 US 510, 532; 47 S Ct 437; 71 L Ed 749; 50 ALR 1243 (1927).
As Judge Bronson noted, concurring and dissenting in Morris v *480Metriyakool, 107 Mich App 110, 128; 309 NW2d 910 (1981):
"In addition, relatively recent cases and articles have commented on the unwillingness among medical practitioners to testify against one another. See, e.g., Morgan v Rosenberg, 370 SW2d 685 (Mo App, 1963); Halldin v Peterson, 39 Wis 2d 668; 159 NW2d 738 (1968); L’Orange v Medical Protective Co, 394 F2d 57 (CA 6, 1968); Agnew v Parks, 172 Cal App 2d 756; 343 P2d 118 (1959) (suit was brought against a group of doctors for 'conspiracy to obstruct the ends of justice’ for their refusal to testify); Markus, Conspiracy of Silence, 14 Cleveland-Marshall L Rev 520 (1965); Seidelson, Medical Malpractice Cases and the Reluctant Expert, 16 Cath U L Rev 158 (1966).9 Problems with the 'conspiracy of silence’ have been mitigated over the years. Nonetheless, it is not unrealistic to conclude that anti-plaintiff attitudes continue to exist among large numbers of doctors.10 As such, there is a strong possibility that the physician on an arbitration panel will be biased.
In addition, Judge Kaufman noted in Murray v Wilner, 118 Mich App 352, 362-363; 325 NW2d 422 (1982):
"Survey evidence of physician attitudes indicates that malpractice has been a growing concern. W. Pabst, 'A Medical Opinion Survey of Physicians’ Attitudes on Medical Malpractice’, Appendix, Report of Secretary’s Comm on Medical Malpractice, Dep’t of Health, Education and Welfare (1973), pp 83-86. In the Pabst survey, over 40% of the responding physicians felt that 'the most effective technique for alleviating the malpractice problem’ was Taws limiting such suits’ or 'reduced court judgments’. Id. A more recent survey of Arizona physicians revealed that fully 75% felt that in 'most malpractice suits, the physician is not at fault’. Brown, 'Arizona Physicians’ Attitudes Toward Consumers, Physicians and Health Care’, Arizona Medicine, March, 1980, pp 174-179. Perhaps more telling is the following excerpt of the statement of Dr. George Northrup to a Department of Health, Education and Welfare commission studying the malpractice problem:
" 'As a physician, I live in an aura of fear — fear of suit. Fear contributes to hostility and rarely contributes to constructive action. *481Medicine has some bad doctors and some bad health-care institutions. We are not proud of them, nor do we defend them, and we are concerned with the correction or elimination of that element. Some do not believe that we have this concern, but believe me it is true. It is my opinion that if this were to be corrected overnight, the professional liability problem would remain * * *.
" 'The House of Medicine feels belabored. Medical organizations are trying their best to overcome their deficiencies, but in my opinion, malpractice litigation is not the best incentive to improvement. It places medicine in an adversary position, and hostilities too often result * * ”
The foregoing is further evidence of the strong potential for alignment between medical-member decisionmakers and medical-member defendants in malpractice controversies.
"9In Prosser, Torts (4th ed), p 227, fn 3, the author notes a survey conducted by the Boston University Law-Medicine Research Institute and reported in Medical Economics on August 28, 1961. The survey showed that out of 214 doctors, only 31% of the specialists and 27% of the general practitioners would be willing to testify for the plaintiff if a surgeon, operating on a diseased kidney, removed the wrong one.
"10There is a medical community whose members face in their daily efforts to make a living common experiences and risks, including: (1) the possibility of being subjected to a suit for malpractice; (2) inconvenience associated with the defense of such a suit; (3) anxiety associated with a malpractice suit; (4) subjection to increased malpractice costs; and (5) facing the possibility that malpractice insurance cannot be obtained at any cost. It would be the uncommon physician who did not have a bias, either overtly or unconsciously, against a plaintiff alleging medical malpractice.”
While not directly parallel, certain provisions of GCR 1963, 511 evidence a similar concern. In pertinent part GCR 1963, 511.4 provides:
".4 Challenges for Cause. After the examination of prospective jurors is completed and before any juror is sworn, the parties may challenge any juror for cause. Every challenge for cause shall be determined by the court. A juror challenged for cause may be directed to answer every question pertinent to the inquiry. The following are grounds for challenges for cause:
"(12) that the person has a financial interest other than that of a taxpayer in the outcome of the case;
"(13) that the person is interested in a question like the issue to be tried.”
See also Cramer v Metropolitan Savings & Loan Ass’n, 401 Mich 252, 258; 258 NW2d 20 (1977), reh den 402 Mich 954 (1977), 402 Mich 959 (1978), 405 Mich 830 (1979), cert den 436 US 958; 98 S Ct 3072; 57 L Ed 2d 1123 (1978), reconsideration den 417 Mich 1114 (1983), and Northrip v Federal National Mortgage Ass’n, 372 F Supp 594 (ED Mich, 1974).
Indeed,
"the distinctions between 'permission’ and 'compulsion’ on the one hand, and 'exclusive’ and 'non-exclusive’, on the other, cannot be determinative factors in state-action analysis. There is no great chasm between 'permission’ and 'compulsion’ requiring particular state action to fall within one or the other definitional camp. Even Moose Lodge No 107 v Irvis, 407 US 163; 92 S Ct 1965; 32 L Ed 2d *484627 (1972), ** * * recognizes that there are many intervening levels of state involvement in private conduct that may support a finding of state action.4
Rather, the inquiry must focus on "the State’s role in defining and controlling the * * * relationship”. Id., p 174 (emphasis in original).
"4In Moose Lodge the Court found state action * * * [although the] regulation was neutral on its face * * * and did not compel the Lodge to adopt a discriminatory membership rule.” Flagg Bros, supra, pp 170-171 (Stevens, J., dissenting) (emphasis in original).
"Whether termed 'traditional,’ 'exclusive,’ or 'significant,’ the state power to order binding, nonconsensual resolution of a conflict * * * is exactly the sort of power with which the Due Process Clause is concerned. And the State’s delegation of that power to a private party is, accordingly, subject to due process scrutiny. * * * The focus is not on the private deprivation but on the state authorization. * * * The State’s conduct in this case takes the concrete form of a statutory enactment, and it is that statute that may be challenged.
"[I]t is no longer possible, if it ever was, to believe that a sharp line can be drawn between private and public actions. * * *
"In the broadest sense, we expect government 'to provide a reasonable and fair framework of rules which facilitate commercial transactions’ [citation omitted]. This 'framework of rules’ is premised on the assumption that the State will control nonconsensual deprivations of property and that the State’s control will, in turn, be subject to the restrictions of the Due Process Clause. The power to order legally binding surrenders of property and the constitutional restrictions on that power are necessary correlatives in our system. In effect, today’s decision allows the State to divorce these two elements by the simple expedient of transferring the implementation of its policy to private parties. * * * [T]he Fourteenth Amendment does not countenance such a division of power and responsibility”. Flagg Bros, supra, pp 176-179.
See fns 11 and 12. Also, as is obvious from the accompanying text and fn 14, my brother Ryan and I differ regarding interpretation of the MMAA. See ante, pp 447-450, 467, 473.
In the absence of the present statutory scheme, although the parties could have independently contracted to abide by arbitration which did not afford procedural due process, the state would not be authorizing and controlling that arbitration, but might or might not merely enforce it.
Also note that in these cases the terms of the statutorily mandated arbitration agreement do not, and perhaps cannot, contain the procedures imposed pursuant to the agreement. Further, there is no indication that the "information brochure” which must accompany the agreement given to the patient explains those procedures. MCL 600.5041(6); MSA 27A.5041(6); MCL 600.5042(7); MSA 27A.5042(7). Even if the brochure did contain such information, the act does not make it part of the agreement nor require or permit that it be read prior to execution of the agreement, i.e., "[t]he brochure shall be furnished the person receiving health care at the time of execution”. Thus, even if the state could authorize and control a dispute-resolution mechanism which does not afford procedural due process, it cannot be concluded on this record that patients in cases governed by the medical malpractice arbitration act of 1975 agree to a biased decisionmaker. Further, query whether, even if the agreement contained a term referring to the biased decisionmaker, the inability of the patient to alter that term would nonetheless result in a violation of due process? See, generally, Cramer v Metropolitan Savings & Loan Ass’n, 401 Mich 252, 257-260; 258 NW2d 20 (1977), reh den 402 Mich 954 (1977), 402 Mich 959 (1978), 405 Mich 830 (1979), cert den 436 US 958; 98 S Ct 3072; 57 L Ed 2d 1123 (1978), reconsideration den 417 Mich 1114 (1983); Williams & Works, Inc v Springfield Corp, 81 Mich App 355, 363-367; 265 NW2d 328 (1978), rev’d on other grounds 408 Mich 732; 293 NW2d 304 (1980); National Airport Corp v Wayne Bank, 73 Mich App 572; 252 NW2d 519 (1977).