DAVIS, Justice:

Two appeals have been consolidated for decision in this matter. In these consolidated appeals, Credit Acceptance Corp., petitioner (hereinafter "Credit Acceptance"), appeals orders issued by the Circuit Court of Raleigh County in each case that denied Credit Acceptance's motion to compel arbitration.1 Credit Acceptance contends that, in both of these cases, the circuit courts erred by concluding that the arbitration agreements were unconscionable based upon the unavailability of arbitration forums named therein, and because the debtors in the agreements waived their respective rights to a jury trial. Because we find that one of the arbitration forums named in the agreements remains available to arbitrate the parties' disputes, and because an arbitration agreement is not rendered unenforceable solely because a party thereto waives his or her right to a jury trial, we reverse both of these cases and remand for entry of orders compelling arbitration.

I.

FACTUAL AND PROCEDURAL HISTORY

The cases underlying these consolidated appeals all involve the purchase of an automobile. We relate the particular facts of each case separately below.

A. Front Plaintiffs

On August 17, 2007, Robert and Billye Front (hereinafter collectively "the Fronts") purchased a 2003 Chevrolet Cavalier automobile from Finish Line Pre-Owned Auto Sales (hereinafter "Finish Line"). To purchase this vehicle, the Fronts executed a retail installment and security agreement with Finish Line. Finish Line assigned all its rights, title, and interest in the contract and the vehicle to Credit Acceptance in exchange for Credit Acceptance financing the purchase.

Thereafter, on April 17, 2008, the Fronts purchased a 2005 Ford Focus vehicle from Prestige Ford Lincoln-Mercury, Inc. (hereinafter "Prestige"). As with their first automobile purchase, the Fronts executed a retail installment contract with Prestige. Prestige subsequently assigned all its rights, title, and interest in the contract to Credit Acceptance.

Both of the retail installment contracts executed by the Fronts in connection with their vehicle purchases contained arbitration clauses. The clauses were nearly identical2 and stated, in part:

(Footnotes added). After the Fronts executed the aforementioned contracts, one of the selected arbitration forums, the National Arbitration Forum (hereinafter "NAF"), was sued by the State of Minnesota. As a result of this suit, the NAF entered into a consent decree forbidding it from conducting consumer arbitration. See CompuCredit Corp. v. Greenwood, ___ U.S. ___, ___ n. 2, 132 S.Ct. 665, 677 n. 2, 181 L.Ed.2d 586 (2012) ("In 2009, after the Attorney General of Minnesota filed an action alleging that NAF had engaged in numerous violations of consumer-protection laws, NAF entered into a consent decree barring it from handling consumer arbitrations."). Shortly thereafter, "[i]n July 2009, AAA issued a moratorium on arbitrating cases concerning consumer debt collections if those cases were brought by the company and the consumer did not consent to the arbitration." Montgomery v. Applied Bank, 848 F.Supp.2d 609, 613 (S.D.W.Va. 2012). Thus, one of the contractually designated arbitrators, NAF, was no longer available to arbitrate any dispute that arose under the Credit Acceptance/Front contracts, and the other designated arbitrator, AAA, was available only on a limited basis.

The Fronts commenced two civil actions against Credit Acceptance in the Circuit Court of Raleigh County in May 2011. The claims related to communications the Fronts allegedly received from Credit Acceptance after their debt under the two retail installment contracts was in arrears. Each complaint set forth four causes of action: (1) violations of the West Virginia Consumer Credit and Protection Act (hereinafter "the WVCCPA"); (2) negligence; (3) intentional infliction of emotional distress; and (4) invasion of privacy. In each case, Credit Acceptance filed a motion to compel arbitration and dismiss, or, in the alternative, to stay the action pending arbitration. The circuit court consolidated the two cases and ultimately denied Credit Acceptance's motions. The circuit court found that the contracts were not procedurally unconscionable at the time of their formation, but the subsequent unavailability of one of the selected arbitration forums materially changed the contracts and rendered them procedurally unconscionable. The court additionally found that the unavailability of one of the selected forums rendered the contracts substantively unconscionable. Finally, the circuit court found that the arbitration agreements violated the Fronts' fundamental right under the West Virginia Constitution to use the court system to seek justice and violated the WVCCPA, which the circuit court interpreted as prohibiting a consumer from waiving the right to a jury trial. The court designated the order as a "final order." It is from this order that Credit Acceptance appeals.

B. Shrewsbury Plaintiff

Ocie Shrewsbury and Virgil Shrewsbury5 (hereinafter collectively "the Shrewsburies") purchased a 2000 Ford Expedition from Greg Lilly Auto Sales, Inc. (hereinafter "Lilly Auto"), on July 11, 2010. In connection with this purchase, the Shrewsburies executed a retail installment contract and security agreement with Lilly Auto. Lilly Auto then assigned all its rights, title, and interest in the contract and the vehicle to Credit Acceptance, who financed the purchase. The retail installment contract executed by the Shrewsburies in connection with their vehicle purchase contained an arbitration clause using the same language as that quoted above from the 2005 Front contract. Notwithstanding the fact that the NAF was no longer available to arbitrate any dispute that arose under the contract, and the AAA was available only on a limited basis,6 the contract nevertheless designated those two organizations as arbitrators of any disputes in the same manner as those organizations had been designated in the Credit Acceptance/Front contracts.

On May 17, 2011, Ocie Shrewsbury (hereinafter "Ms. Shrewsbury") filed a civil action against Credit Acceptance in the Circuit Court of Raleigh County alleging: (1) violations of the WVCCPA; (2) negligence; (3) intentional infliction of emotional distress; and (4) invasion of privacy related to communications she allegedly received from Credit Acceptance after her debt under the retail installment contract was in arrears. Credit Acceptance then filed a motion to compel arbitration or, in the alternative, to stay the action pending arbitration. The circuit court ultimately denied the motion finding the arbitration agreement was not enforceable. Similar to the circuit court's order in the Front case, the circuit court found that the contract was not procedurally unconscionable insofar as "it provided an adequate means for the Plaintiff to opt out." However, the circuit court further observed that the unavailability of the selected arbitration forums materially changed the contract such that there was no meeting of the minds. Therefore, the circuit court concluded that the contract was unenforceable "as it exists today." The circuit court additionally found that the unavailability of the selected forums materially altered the terms of the contract and rendered the contract substantively unconscionable. Finally, the circuit court found the arbitration agreement was unenforceable in that it essentially eliminated Ms. Shrewsbury's constitutional right to file suit. It is from this order that Credit Acceptance appeals.

II.

STANDARD OF REVIEW

Before we reiterate the proper standard for our review of these consolidated cases, we first consider whether these appeals are appropriate. These two appeals are before this Court from circuit court orders that denied motions to dismiss and to compel arbitration. Thus, these consolidated cases seek this Court's review of interlocutory orders.

Ewing v. Board of Educ. of Cnty. of Summers, 202 W.Va. 228, 235, 503 S.E.2d 541, 548 (1998). Typically, interlocutory orders are not subject to this Court's appellate jurisdiction. See Coleman v. Sopher, 194 W.Va. 90, 94, 459 S.E.2d 367, 371 (1995) ("The usual prerequisite for our appellate jurisdiction is a final judgment, final in respect that it ends the case."). This "rule of finality" is not an absolute rule. Rather, there is a "narrow category of orders that are subject to permissible interlocutory appeal." Robinson v. Pack, 223 W.Va. 828, 831, 679 S.E.2d 660, 663 (2009). The Robinson Court explained that,

223 W.Va. at 832, 679 S.E.2d at 664 (footnote omitted). See also C & O Motors, Inc. v. West Virginia Paving, Inc., 223 W.Va. 469, 475, 677 S.E.2d 905, 911 (2009) ("In addition to the `ministerial' acts exception, this Court has recognized a limited number of other exceptions to the rule of finality. Our cases have pointed out that we may address specific issues decided by an interlocutory order under the collateral order doctrine or `by writs of prohibition, certified questions, or by judgments rendered under Rule 54(b) of the West Virginia Rules of Civil Procedure.'" (quoting James M.B., 193 W.Va. at 292 n. 3, 456 S.E.2d at 19 n. 3)). The exception referred to as the "collateral order" doctrine, which was established by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), may be applied to allow appeal of an interlocutory order when three factors are met: "An interlocutory order would be subject to appeal under [the collateral order] doctrine if it (1) conclusively determines the disputed controversy, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment." Durm v. Heck's, Inc., 184 W.Va. 562, 566 n. 2, 401 S.E.2d 908, 912 n. 2 (1991) (internal quotations and citation omitted). See also Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (applying three-part collateral order doctrine to circuit court's denial of summary judgment on issue of qualified immunity and finding order immediately appealable).

Applying the collateral order doctrine, the Robinson Court ultimately held that "[a] circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the `collateral order' doctrine." Syl. pt. 2, id. While Robinson involved a denial of immunity in the form of an order denying summary judgment, this Court has applied Robinson to a qualified immunity decision made in the form of a denial of a motion to dismiss. See Jarvis v. West Virginia State Police, 227 W.Va. 472, 711 S.E.2d 542 (2010).

In concluding that the order denying the motion to dismiss was immediately appealable under the collateral order doctrine, the Jarvis Court adopted the rationale expressed in Robinson. In this respect, the Robinson Court explained that,

Robinson, 223 W.Va. at 832-33, 679 S.E.2d at 664-65 (concluding that "[a]pplication of the Cohen test demonstrates that a circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the `collateral order' doctrine.").

Following the rationale expressed by the Robinson Court, we will analyze an order compelling arbitration under the collateral order doctrine to ascertain if such an order is among that limited class of interlocutory orders that is immediately appealable.7

As to the first factor in the collateral order test, that the ruling at issue "conclusively determines the disputed controversy," Durm, 184 W.Va. at 566 n. 2, 401 S.E.2d at 912 n. 2, we find that a circuit court's ruling that refuses to compel arbitration is conclusive as to the disputed controversy of whether the parties are required to arbitrate. By denying such a motion, the circuit court thereby concludes that a case will proceed to trial. Such a ruling forecloses arbitration of the underlying claims asserted and, therefore, conclusively resolves the issue of arbitration.

The second factor of the collateral order test asks whether the order "resolves an important issue completely separate from the merits of the action," Durm, 184 W.Va. at 566 n. 2, 401 S.E.2d at 912 n. 2. We find there to be little doubt that the issue of arbitration is completely separate from the merits of the underlying claims in a given action. Furthermore, resolution of the arbitration question is important in that it resolves the foundational question of the manner in which the parties will resolve their dispute, either by arbitration or through the courts.

The final consideration in the collateral order test is whether the order "is effectively unreviewable on appeal from a final judgment." Durm, 184 W.Va. at 566 n. 2, 401 S.E.2d at 912 n. 2. We find that an order refusing to compel arbitration is effectively unreviewable on appeal. The result of such an order is litigation. The purpose of arbitration is to avoid litigation in favor of a quicker and less costly method of dispute resolution. See Raymond James Fin. Servs., Inc. v. Bishop, 596 F.3d 183, 190 (4th Cir.2010) (commenting that "`the purpose of having arbitration at all [is] the quick resolution of disputes and the avoidance of the expense and delay associated with litigation'" (quoting Apex Plumbing Supply, Inc. v. U.S. Supply Co., Inc., 142 F.3d 188, 193 (4th Cir.1998))); Grayiel v. Appalachian Energy Partners 2001-D, LLP, 230 W.Va. 91, ___, 736 S.E.2d 91, 101 (2012) (identifying one purpose of arbitration as "providing a suitable alternative forum for plaintiff's claims"); Board of Ed. of Berkeley County v. W. Harley Miller, Inc., 160 W.Va. 473, 479, 236 S.E.2d 439, 443 (1977) (describing the purpose of arbitration as "just, speedy, economical conflict resolution"). Thus, a party who is required to wait until the conclusion of litigation to appeal the denial of arbitration has already borne the financial and temporal cost of such litigation and has, therefore, effectively lost, irreparably, the right to arbitration.

Having found that an order denying a motion to compel arbitration fulfils the requirements of the collateral order doctrine, we now hold that an order denying a motion to compel arbitration is an interlocutory ruling which is subject to immediate appeal under the collateral order doctrine. Applying this holding to the instant case, we find the appeals are proper.

When an appeal from an order denying a motion dismiss is properly before this Court, our review is de novo. See, e.g., Syl. pt. 4, Ewing, 202 W.Va. 228, 503 S.E.2d 541 ("When a party, as part of an appeal from a final judgment, assigns as error a circuit court's denial of a motion to dismiss, the circuit court's disposition of the motion to dismiss will be reviewed de novo."). Accordingly, we proceed to conduct our de novo review of the issues raised in these consolidated appeals.

III.

DISCUSSION

Credit Acceptance asserts that two errors warrant reversing the circuit courts' orders denying its motions to compel arbitration in these cases. First, Credit Acceptance argues that the circuit courts erred in finding the contracts to be unconscionable based upon the unavailability of arbitration forums named in the agreements. Second, Credit Acceptance argues that the circuit courts erroneously concluded that the arbitration agreements were unenforceable because the debtors therein waived their rights to a jury trial. We address these issues separately below.

A. Unconscionability

On the topic of contractual unconscionability, this Court previously has held that

Syl. pt. 9, Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 386, 729 S.E.2d 217, 221 (2012).8

The circuit court orders in each of the two consolidated appeals concluded that the arbitration contracts were both procedurally and substantively unconscionable based upon the unavailability of one or both of the two named arbitration forums. Thus, we will address both theories of unconscionability.

1. Procedural Unconscionability. The circuit court's order in the Front case, Appeal No. 11-1646, found the contract to be procedurally unconscionable as follows:

The circuit court's order in the Shrewsbury case, Appeal No. 12-0545, concluded that

Notably, both of the orders quoted above concluded that the contracts at issue were not procedurally unconscionable at the time of their execution, but were rendered procedurally unconscionable by subsequent events. In Syllabus point 10 of Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217 (2012) (hereinafter referred to as "Brown II"), this Court explained that

(Emphasis added). As the Brown II Court observed, procedural unconscionability relates to unconscionability at the time a contract is formed "in the bargaining process and formation of the contract." Id. Because this Court's review must focus on the contract at the time it was agreed upon, the circuit courts' conclusions that the contracts could be rendered procedurally unconscionable by subsequent events is erroneous.9

2. Substantive Unconscionability. The circuit court's order in the Front case, Appeal No. 11-1646, stated, with respect to substantive unconscionability, that

The circuit court's order in the Shrewsbury case, Appeal No. 12-0545, likewise stated that,

(Internal citations and quotations omitted).

This Court has clarified that,

Syl. pt. 12, Brown II, 229 W.Va. 382, 729 S.E.2d 217. The sole basis for the conclusions of the circuit courts that the Front and Shrewsbury contracts were substantively unconscionable was the unavailability of one or both of the arbitration forums designated in the agreement to govern arbitration between the parties to the respective contracts. Insofar as the determination of substantive unconscionability instructs a reviewing court to examine the general fairness of the contract through factors such as "the commercial reasonableness of the contract terms, the purpose and effect of the terms, the allocation of the risks between the parties, and public policy concerns," we find this analysis simply is not applicable to the determination of whether the unavailability of a selected arbitration forum renders a contract unenforceable. There is nothing inherently unreasonable about a contract term in which the parties choose to select one or more forums to conduct arbitration of disputes that may arise between said parties. The subsequent unavailability of a selected forum does not automatically render the contract unconscionable. Rather, courts have developed other tests, which will be discussed below, for determining whether the unavailability of a chosen arbitration forum renders a contract unenforceable. Accordingly, we find that both of the circuit courts erred in finding the Front and Shrewsbury contracts to be substantively unconscionable based upon the unavailability of a chosen arbitration forum.10

B. Forum Availability

The essence of the unconscionability arguments made to this Court in these consolidated appeals is more properly framed as challenging whether the unavailability of a chosen arbitration forum renders an arbitration agreement unenforceable. We begin our analysis with the FAA, insofar as the arbitration agreements at issue all stated that they are governed thereby. Section 5 of the FAA requires a court to designate an arbitrator under certain circumstances:

9 U.S.C. § 5. Federal courts have concluded that section 5 of the FAA may be applied when a chosen arbitrator is unavailable. See Khan v. Dell Inc., 669 F.3d 350, 354 (3d Cir.2012) ("[S]ection 5 of the FAA ... provides a mechanism for substituting an arbitrator when the designated arbitrator is unavailable."); Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217, 1222 (11th Cir.2000) ("Where the chosen forum is unavailable, however, or has failed for some reason, § 5 applies and a substitute arbitrator may be named."); Astra Footwear Indus. v. Harwyn Int'l, Inc., 442 F.Supp. 907, 910 (S.D.N.Y.), aff'd, 578 F.2d 1366 (2d Cir.1978) ("The Court finds that 9 U.S.C. § 5 was drafted to provide a solution to the problem caused when the arbitrator selected by the parties cannot or will not perform.").

However, section 5 of the FAA does not warrant the automatic appointment of a substitute arbitrator when the chosen arbitrator is unavailable. A method for applying section 5 of the FAA under such circumstances was established by the Eleventh Circuit Court of Appeals in Brown v. ITT Consumer Financial Corp., 211 F.3d 1217. More recently, the Brown method was summarized by the Third Circuit Court of Appeals as follows:

Khan, 669 F.3d at 354 (quotations and citations omitted). This formulation of the application of section 5 of the FAA is the majority rule.11 See Ranzy v. Tijerina, 393 Fed. Appx. 174, 176 (5th Cir.2010) ("Section 5 [of the FAA] does not, however, permit a district court to circumvent the parties' designation of an exclusive arbitration forum when the choice of that forum is an integral part of the agreement to arbitrate, rather than an ancillary logistical concern." (quotations and citations omitted)); Reddam v. KPMG LLP, 457 F.3d 1054, 1059-60 (9th Cir.2006) ("When a court asks whether a choice of forum is integral, it asks whether the whole arbitration agreement becomes unenforceable if the chosen arbitrator cannot or will not act."), overruled on other grounds as recognized in Atlantic Nat'l Trust LLC v. Mt. Hawley Ins. Co., 621 F.3d 931, 940 (9th Cir.2010); Brown v. ITT Consumer Fin. Corp., 211 F.3d at 1222 ("Where the chosen forum is unavailable... or has failed for some reason, § 5 applies and a substitute arbitrator may be named.... Only if the choice of forum is an integral part of the agreement to arbitrate, rather than an ancillary logistical concern will the failure of the chosen forum preclude arbitration." (quotations and citations omitted)); Green v. U.S. Cash Advance Illinois, LLC, No. 12-C-8079, 2013 WL 317046, at *3 (N.D.Ill. Jan. 25, 2013) ("A substitute arbitrator may not be appointed, however, if the provision naming the arbitrator was an integral part of the agreement. Thus, the court must decide before applying § 5 whether the chosen arbitration forum is integral to the agreement or merely an ancillary logistical concern." (citations and quotations omitted)); Klima v. Evangelical Lutheran Good Samaritan Soc'y, No. 10-CV-1390-JAR-JPO, 2011 WL 5412216, at *3 (D.Kan. Nov. 8, 2011) (following majority based on finding "the approach taken by the Fifth, Ninth, and Eleventh Circuits consistent with both the purpose behind the FAA and general principles of contract law because it treats arbitration agreements like contracts and looks to the parties' intent"); Adler v. Dell Inc., No. 08-CV-13170, 2009 WL 4580739, at *2 (E.D.Mich. Dec. 3, 2009) ("As a general rule, when the arbitrator named in the arbitration agreement cannot or will not arbitrate the dispute, the court does not void the arbitration agreement. Instead, it appoints a different arbitrator, as provided in [§ 5 of] the Federal Arbitration Act[.] ... The exception to this rule occurs when it is clear that the failed term is not an ancillary logistical concern but rather is as important a consideration as the agreement to arbitrate itself." (internal quotations, citations, and footnote omitted)); McGuire, Cornwell & Blakey v. Grider, 771 F.Supp. 319, 320 (D.Colo.1991) ("[A]s a general rule, where the arbitrator named in the arbitration agreement cannot or will not arbitrate the dispute, a court does not void the agreement but instead appoints a different arbitrator.... There is an exception to this rule. Where it is clear that the failed term is not an ancillary logistical concern but rather is as important a consideration as the agreement to arbitrate itself, a court will not sever the failed term from the rest of the agreement and the entire arbitration provision will fail." (internal quotations and citations omitted)); Carr v. Gateway, Inc., 241 Ill.2d 15, 26, 348 Ill.Dec. 374, 944 N.E.2d 327, 333 (2011) ("[W]e agree with those federal courts that have held section 5 of the Act may be applied to name a substitute arbitrator where the parties' designated arbitral forum fails, unless the designation of the arbitral forum is integral to the parties' agreement to arbitrate."); Rivera v. American Gen. Fin. Servs., Inc., 150 N.M. 398, 259 P.3d 803, 812 (2011) ("We agree with the jurisdictions that have focused on the parties' intent, as expressed in the contract, to determine whether § 5 of the FAA permits a court to substitute a different arbitration provider. The `integral' or `ancillary logistical concern' test articulated by the Eleventh Circuit in Brown, 211 F.3d at 1222, is consistent with New Mexico's general principles of contract law in requiring courts to give effect to the intent of the parties." (second internal quotation and citation omitted)).

The majority rule is founded on the "liberal federal policy in favor of arbitration articulated in the FAA." Khan, 669 F.3d at 356 (internal quotations omitted). The rationale for the rule has been explained as follows:

Jones v. GGNSC Pierre LLC, 684 F.Supp.2d 1161, 1166 (D.S.D.2010).

We are persuaded by the foregoing authority, and, therefore, we now expressly hold that where an arbitration agreement names a forum for arbitration that is unavailable or has failed for some reason, a court may appoint a substitute forum pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. § 5 (1947) (2006 ed.), only if the choice of forum is an ancillary logistical concern. Where the choice of forum is an integral part of the agreement to arbitrate, the failure of the chosen forum will render the arbitration agreement unenforceable.

Turning to the facts of the instant consolidated cases, the three arbitration agreements involved in this appeal contained the following provision: "You or we may elect to arbitrate under the rules and procedures of either the National Arbitration Forum or the American Arbitration Association." As we explained in the "Factual and Procedural History" section of this opinion, Section I.A., supra, as a result of a suit filed by the State of Minnesota, the NAF entered into a consent decree forbidding it from conducting consumer arbitration. See CompuCredit Corp. v. Greenwood, ___ U.S. at ___ n. 2, 132 S.Ct. at 677 n. 2, 181 L.Ed.2d 586 ("In 2009, after the Attorney General of Minnesota filed an action alleging that NAF had engaged in numerous violations of consumer-protection laws, NAF entered into a consent decree barring it from handling consumer arbitrations."). Thus, the NAF is unavailable to arbitrate the claims asserted by the Fronts and Ms. Shrewsbury against Credit Acceptance.

Shortly after the NAF was barred from handling consumer arbitrations, the "AAA issued a moratorium on arbitrating cases concerning consumer debt collections if those cases were brought by the company and the consumer did not consent to the arbitration." Montgomery v. Applied Bank, 848 F.Supp.2d at 613 (emphasis added). It is significant that the moratorium issued by the AAA applies only to consumer debt collection cases brought by the company. Thus, as Credit Acceptance has asserted, because the claims against it were brought by consumers, the Fronts and Ms. Shrewsbury, the AAA remains an available forum to arbitrate those claims. Indeed, during oral argument of this case, counsel for the Fronts and Ms. Shrewsbury rightfully conceded that the AAA remained available to arbitrate his clients' disputes. See Montgomery, 848 F.Supp.2d at 614 ("AAA indicates that it will continue to administer all demands for arbitration filed by consumers against businesses, and all other types of consumer arbitrations." (quotations and citation omitted)). See also American Arbitration Association, "Notice on Consumer Debt Collection Arbitrations," available at, http://www.adr.org/cs/groups/governmentandconsumer/documents/document/dgdf/mdey/~edisp/adrstg_012244.pdf ("[T]he AAA's previously announced moratorium on debt collection arbitrations remains in effect.... Matters included in this moratorium are: consumer debt collection programs or bulk filings and individual case filings in which the company is the filing party and the consumer has not agreed to arbitrate at the time of the dispute, and the case involves a credit card bill, a telecom bill or a consumer finance matter. The AAA will continue to administer all demands for arbitration filed by consumers against businesses as well as all other types of consumer arbitrations." (emphasis added)).

Because one of the arbitration forums named in the arbitration agreements remains available to arbitrate the disputes underlying this appeal, it is not necessary for this Court to conduct an analysis as to whether the forum selection was merely an ancillary logistical concern, or was instead an integral part of the agreement to arbitrate. Due to the availability of a chosen forum, the circuit courts erred in denying Credit Acceptance's motions to compel arbitration. See, e.g., Montgomery v. Applied Bank, 848 F.Supp.2d 609, 613 (finding arbitration agreement not unenforceable on grounds of unavailability of forum, in part, because AAA remained available); Conroy v. Citibank, N.A., No. CV 10-04930 SVW (AJWx), 2011 WL 10503532, at *6 (C.D.Cal. July 22, 2011) (rejecting argument that arbitration agreement unenforceable due to potential unavailability of forum where AAA remained available); Smith v. ComputerTraining.com Inc., 772 F.Supp.2d 850, 862 (E.D.Mich.2011) ("This case is not covered by the moratorium. It does not involve a consumer debt collection, telecom bill, or consumer finance matter. Instead, this case constitutes a claim which would be filed by consumers against a business, which AAA's website explicitly says that it will hear.... Plaintiffs can demand arbitration before AAA." (citation omitted)); In re Pfeiffer, Bankr. No. 11-13274, 2011 WL 4005504, at *8 (Bkrtcy.E.D.Pa. Sept. 8, 2011) (finding FAA section 5 inapplicable due to availability of AAA).

C. Right to a Jury Trial

In the Front case, Appeal No. 11-1646, the circuit court found that the Fronts could not contractually waive their rights under the WVCCPA, stating:

Similarly, in the Shrewsbury case, Appeal No. 12-0545, the circuit court stated:

Credit Acceptance argues that the foregoing rulings were erroneous. We agree. In Syllabus point 1 of Brown II, this Court held:

229 W.Va. 382, 729 S.E.2d 217 (citation omitted). Thus, insofar as an arbitration agreement, by its very nature, requires a party to surrender his or her right to litigate, it may not be invalidated solely upon that ground. See American Gen. Life & Acc. Ins. Co. v. Wood, 429 F.3d 83, 91 n. 6 (4th Cir.2005) ("To the extent that Wood argues that any waiver of his constitutional right to access to state courts or trial by jury must be knowing and voluntary, we have already stated that `the loss of the right to a jury trial is a necessary and fairly obvious consequence of an agreement to arbitrate.' Snowden v. CheckPoint Check Cashing, 290 F.3d 631, 638 (4th Cir. 2002) (internal quotations and citations omitted)."); Lake James Cmty. Volunteer Fire Dep't, Inc. v. Burke Cnty., N.C., 149 F.3d 277, 280 (4th Cir.1998) (commenting "simply because a contract includes the waiver of a constitutional right does not render the contract per se unenforceable" and including the right to a jury trial in a list of waivers of rights that have been upheld). See also Harrington v. Atlantic Sounding Co., Inc., 602 F.3d 113, 126 (2d Cir.2010) (concluding "Harrington's argument that the Agreement was substantively unconscionable because it takes away his right to a trial by jury fails because courts may not rely on the uniqueness of an agreement to arbitrate, which necessarily waives jury trial, as a basis for a state-law holding that enforcement would be unconscionable.... It is well-settled that waivers of jury trial are fully enforceable under the FAA," and collecting cases (quotations and citations omitted)).

Furthermore,

Syl. pt. 8, Brown ex rel. Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250, 261 (2011), overruled in part on other grounds by Marmet Health Care Ctr., Inc. v. Brown, ___ U.S. ___, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012) (per curiam). Insofar as the circuit courts' rulings single out arbitration for disfavored treatment, such rulings must be rejected. Accordingly, we find that both circuit courts erred in their conclusions that the arbitration agreements were invalid as waiving the right to a jury trial.

IV.

CONCLUSION

For the reasons expressed in the body of this opinion, in Appeal No. 11-1646, we reverse the October 20th, 2011, order of the Circuit Court of Raleigh County, in which the Fronts were plaintiffs, and remand the cases consolidated by that court for entry of an order compelling arbitration.

We likewise, for the same reasons, in Appeal No. 12-0545, reverse the March 28, 2012, order of the Circuit Court of Raleigh County, in which Ms. Shrewsbury was the plaintiff, and remand for entry of an order compelling arbitration.

Appeal No. 11-1646, Reversed and Remanded.

Appeal No. 12-0545, Reversed and Remanded.

Justice KETCHUM concurs and reserves the right to file a concurring opinion.

Justice KETCHUM, concurring:

I concur with the majority's opinion, but write separately to make two points.

First, in crafting Syllabus Point 3, the majority opinion relied upon the recent case of Khan v. Dell Inc., 669 F.3d 350 (3rd Cir.2012), in deciding whether the unavailability of a chosen arbitration forum renders an arbitration agreement unenforceable. Syllabus Point 3 makes a distinction between whether the choice of the arbitration forum is an "ancillary logistical concern" or an "integral" part of the agreement to arbitrate.

However, the majority opinion gives no guidelines as how to determine if an agreement's choice of a forum is an "ancillary logistical concern" or an "integral" part of the arbitration agreement. I would have, like the Khan case, made this clear by adding the following sentence at the end of Syllabus Point 3: "In this light, the parties must have unambiguously expressed their intent not to arbitrate their disputes in the event that the designated arbitral forum is unavailable." Khan, 669 F.3d at 354. I believe that a court should decline to appoint an alternate arbitrator only when the original choice of forum was "so central to the arbitration agreement that the unavailability of that arbitrator [brings] the agreement to an end." Id.

Second, our recent cases discussing unconscionability in contracts have held that there must be proof of both procedural and substantive unconscionability, judged on a sliding scale. Syllabus Point 20, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011) ["Brown I"]. Under our recent case law, "[t]o be unenforceable, a contract term must — at least in some small measure — be both procedurally and substantively unconscionable." Dan Ryan Builders, Inc. v. Nelson, 230 W.Va. 281, 289, 737 S.E.2d 550, 558 (2012) (quotations omitted).

However, in footnote 8 of the majority opinion, Justice Davis questioned the need for the sliding scale adopted in Syllabus Point 20 of Brown I that requires both substantive and procedural unconscionability. This Court was one of the twelve state supreme courts to have adopted or reaffirmed a sliding scale approach since 2000. See Melissa T. Lonegrass, Finding Room For Fairness in Formalism — The Sliding Scale Approach to Unconscionability, 44 Loy. U. Chi. L.J. 1, 6 (2012). However, of these twelve courts, "five have further expanded the sliding scale approach to hold that a finding of unconscionability may rest on evidence of either procedural or substantive unconscionability without requiring evidence of both." Id.1

Furthermore, our Legislature has suggested that both forms of unconscionability are not required. For example, the Uniform Commercial Code provisions pertaining to leases state that a lease contract or any clause of a lease contract may be voided if it is either procedurally or substantively unconscionable.2 Likewise, the West Virginia Consumer Credit and Protection Act says that, regarding consumer credit sales, leases, or loans, a contract may be voided if it was either "induced by unconscionable conduct" or if the terms of the contract were unconscionable "at the time it was made."3

Justice Davis correctly finds that this issue was neither briefed by the parties nor needed to be addressed to resolve this case. However, in the future, I believe that this Court should revisit Syllabus Point 20 of Brown v. Genesis Healthcare Corp. [Brown I] and clarify this point of law.