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Having been involved in actual civil litigation, a lot of this rings true. The simplest possible civil cases take years to resolve, at tremendous expense.
"We can go to court if you want to, just know that we will spend half of what we think your case could go for if you win defending ourselves and use every tactic in our arsenal to drain your war chest until you are financially unable to continue the lawsuit, so unless you've got big bucks to burn or a darn good case and a lawyer willing to fight for you you are better off choosing an arbitrator and getting a simple and just settlement in 3 months vs 3-8 years from now even if we did wrong"
Mediation is not the same as arbitration. Mediators are negotiators. Arbitrators pass judgments.
PROTIP: It's not "mediation" if the mediating attorney represents the other party, nor is it arbitration. That's an Interrogation held under the pretense of "being reasonable." Like talking to the cops, it's a trap-- GTFO of there immediately and don't come back without your own attorney. (My wife's ex pulled this one.)
Mediation is two parties sitting down with an attorney (who represents neither of them) to work something out and have a judge sign off on it. Both parties have the right to select or reject the attorney involved. This is done to save court time more than anything. You always retain the right to flip the table and take the dispute to court. (IANAL, just former staff for a district ADR program.)
By contrast, I was involved in one arbitrated dispute around the time the concept first hit the scene. It was a kangaroo court where they made the rules up as they went. There is a formal process to it but the rules and procedures are completely foreign to you, and you can't hire an attorney to represent you. Mine was a wage dispute where they inexplicably wouldn't let me introduce timesheets as evidence. Instead, I pled my case orally and got a letter a few weeks later stating I lost because I couldn't prove my claims (lol), and helpfully reminding me that was as far as I could go with the issue. I was set up to be completely railroaded. To be fair, while I was undeniably wronged, I'm not saying I was unquestionably entitled to recourse-- I'm saying I have no idea who's really in the right or who should have done what since it's not like the proceedings can be reviewed by anybody or conclusions were based on any case law.
My impression of it is that companies found a way to get the more-disarming parts of magistrate court to apply to claimants that could otherwise claim significant losses or become class-action, to divert them from the legal pipeline altogether to Judge Judy, who has no qualms admitting she's ruling against you because despite the merits of your case, she just doesn't fucking like you and her word is final.
Which arbitrator required this? To be clear, this is unconventional and should be illegal.
The other side had their attorney present, but he was not a participant in the proceedings, if that makes it any clearer. On-record it was just me, my former boss and the arbitrator.
There is mediation. But it’s non-binding.
This should be fixed. But in the meantime, mechanically opting out of consumer arbitration is immensely stupid.
Fixing the system would be much better than banning arbitration, but it's also probably very, very hard.
So here we are.
So what happens instead? Each company comes up with their own detailed, up-to-date, heavily skewed set of rules. And we agree to use their private court system or go to another company that does the same thing but slightly different.