That's not what it does. I think arbitration (except between companies) is dangerous, but arbitration doesn't mean one party decides, but a third-party (arbitrator).
There isn't a vibrant market for arbitrators. A consumer-oriented one clearly wouldn't be approved by the industry board, and so couldn't be chosen even if the consumer would pay for it. It's a dog and pony show to conjure a purportedly neutral third party, but that "third party's" ongoing business relies on delivering the company's desired outcome. Hence, agent.
Furthermore, the deeper repudiation of meaning is the assertion that the arbitrator's decision is exempt from review by a proper court.
Winning isn't actually binary. A trivial example is an award of $1 to the consumer, technically a win to the consumer, but clearly a loss.
The far more meaningful statistic would be the magnitude of the awards, especially as compared to awards by courts.
I suspect mindslight's argument may well be supported by the statistics showing a reduction in costs to big firms at the hands of arbitrators, though I admit that's just speculation.
Also, you mentioned consumers. What about employees versus employers, tiny business versus large business, or other large power disparities.
But if you want to talk about practical evidence, then why exactly do companies have to trick consumers into "agreeing" to future mandatory arbitration?! If arbitration is truly beneficial for both parties, then a consumers can always choose to enter into binding arbitration after a dispute arises!
>But if you want to talk about practical evidence, then why exactly do companies have to trick consumers into "agreeing" to future mandatory arbitration?! If arbitration is truly beneficial for both parties, then a consumers can always choose to enter into binding arbitration after a dispute arises!
#1 - Contract terms are not a "trick." Making arbitration mandatory across the board is far better for the company than having it decided case-by-case, because they can estimate costs better.
#2 - Consumers don't know anything about arbitration, and much of what they think they know isn't true. Are you going to argue that consumers are weighing real cost and benefit? You're the one whose position is based on the idea that consumers aren't smart enough to avoid this terrible idea (that isn't).
Re #1 - a clause that allows one to completely opt out of it, but only within 30 days after opening an account, by snail mailing (an onerous communication method compared to the customary method of the relationship) to a specific address buried in pages of terms. That's basically purpose-designed to take advantage of consumer uninformedness/laziness!
Re #2 - there's a big difference between how much effort will be spent when opening an account, versus looking into a problem.
Your general argument is casually resting on these common falsehoods that consumers proactively read tens of pages of terms, that interpreting dense legalese (including the context of relevant case law) is straightforward to the average consumer, and that companies aren't just continually attacking consumers with garbage terms [0] just because they can (most likely their legal staff justifying their own paycheck).
That's not surprising - it is after all how the status quo is perpetuated, and how attorneys gatekeep access to the legal system (thus undermining equal protection). It's just not right, in the sense of morality or even correctness.
[0] http://www.law.harvard.edu/programs/olin_center/fellows_pape...
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Well, to even form a contract, both parties have to have an understanding of what exactly is being agreed to. So it's more than a bit disingenuous to claim that the real details are just too complex for a non-insider to have an opinion.
And BTW, the trend is new enough that individual companies are still shifting between having said clauses and not after getting slapped down (eg CapitalOne), and tinkering with said clauses in an attempt to make them hold up better (eg adding a 30 day opt out period from account opening).
An understanding that they will be undergoing arbitration is enough to satisfy the "meeting of the minds" element, the fact that a lot of people have antifactual opinions about arbitration notwithstanding.
>And BTW, the trend is new enough that individual companies are still shifting between having said clauses and not after getting slapped down (eg CapitalOne), and tinkering with said clauses in an attempt to make them hold up better (eg adding a 30 day opt out period from account opening).
Yes, and this is primarily because of silly attacks on arbitration, and not because of actual facts. Judges are really bad at looking at facts -- this is one more area where arbitration tends to do far better. The average person loves rent control, too, but that doesn't stop them from being provably wrong.
They also know that any award they might receive will be smaller, and that if they do not win the case, the process will be costly and without appeal.
If the win rates remain unchanged after filtering out most of the consumer/employee complainants who don't have a slam dunk case, that is likely because there is systemic bias.
People make the mistake of assuming that the advantage for companies has to be in the trial results, when the fact is that there's plenty of advantage of paying claimants at a higher rate as long as you're getting it done faster with fewer billable hours to your attorneys.
Based on professional observation, consumers/customers (meaning individuals) generally win arbitration cases against businesses. Employees tend to lose. Haven't seen enough B2B arbitration cases to comment on any sort of pattern.