As monksy says, arbitrators tend to grant smaller awards than juries. So for major cases, litigation is better. But arbitration is faster and cheaper for everyone. So for smaller claims (and I mean in litigation land, so under around $1mm) arbitration almost always increases options for consumers and usually does for employees.
Arbitration in the US to me (as someone who's had to deal with that shit in digital service EULAs since I'm not in the US) always comes across as signing away your left eye to get a discount on eye surgery on your right eye. Sure, there's some benefit to that discount, but you're trading one hell of a lot away.
It's also usually paired up with things like a class action waiver and other assorted crap that mostly seems to exist to give the company an non-negotiable legal advantage over the consumer/employee.
These are separate issues.
Arbitration excels at medium-sized claims. Should it be a public function? Absolutely. But that recognises that it has a function distinct from small claims and general litigation.
If we are going to talk about other countries—-they don’t have class actions or gigantic punitive damages awards. Lawsuits are by and large intended to compensate people for their losses rather than be a substitute regulatory regime as in the US. Consumer arbitration, in practice if not theory, is much closer to that.
So if the courts are so flawed why create an entire parallel system, funded by the richer parties? It reeks of selling justice. And the 'voluntary' opt out requires careful reading of lifetimes worth of text, postage, and repeating a bespoke process for every company one ever interacts with.
It all sounds to me like there is a bug in the kernel scheduler (judiciary) so dominant programs (say browsers) demand every app that interacts with them use their choice of user-space scheduler which the dominant party happens to have bankrolled. And all this instead of fixing the kernel.
Small claims are for small claims. No lawyers, no juries, no opinions; just a decision. Courts are great for large claims. Lawyers, juries and precedent-setting opinions.
In between are medium-sized claims where you want a lawyer but not a jury or opinion. (There are too many cases and they’re not individually worth it. If they’re worth it in aggregated, they should be certified as a class, something I don’t think one should be allowed to waive one’s right to.)
Arbitration emerged as a solution to claims too big and complex for small claims, but not worth litigating in court.
Perhaps we need medium claims court that can be independent, instead of a private system bought and paid for by the wealthier party.
There's a lot of stuff that can happen with damages between $15,000 and $1,000,000.
A: could agree to arbitration or decide to go to trial. B: signed away right to trial so can only do arbitration.
I fail to see how B provides more options for consumers than A.
The point is to commit to a path ex ante. If I know someone has a $100k claim against me, and I have more liquidity than them, I’m not going to agree to arbitration.
Tell a regular person that oh, you can sue the company in front of an arbiter of their choosing, who’s fees are paid by the company, and they will immediately walk away, because no one will believe they will get a fair hearing at what appears to be a rigged court.