concurring.
I concur that the writ should be quashed, but I write separately to suggest that the issues presented have been mooted by the defendant McBride’s concessions.
I agree that the arbitration clause was unconscionable to the extent it provided that “[t]he arbitrator shall be selected by the President of the Homebuilders Association of Greater St. Louis” and that at the time the lawsuit was filed (though no longer) the president of the Homebuilders Association was also the president of McBride. But from the time relators first opposed McBride’s effort to invoke arbitration, McBride has continually acknowledged in its communications with relators, in its brief, and in oral argument to this *863Court that some other arbitrator should be appointed. Indeed, McBride stated to re-lators and to the Court that “[w]e can request the trial court to appoint an arbitrator for us,” which is the procedure specified in sec. 435.360 and the very remedy the majority now imposes.
With regard to the purported cost-shifting provisions, McBride maintains, and I agree, that the proper interpretation of the provision is simply that relators are bound to pay the costs incurred by McBride in enforcing its contractual right to arbitrate the dispute, not that relators are bound to pay the cost of the arbitration proceedings altogether. Of course, had the cost-shifting provision actually said that relators are bound to pay all the costs of the arbitration proceedings, then I would agree that the provision was unconscionable. But that is not the case because McBride has expressly stated that it is not entitled to those costs and that it is not claiming those costs.
Given these concessions, the issues are moot, there are no justiciable claims and the majority’s analysis is unnecessary and unwarranted.