So Uber ToS requires you to accept arbitration, then, when they are found responsible for damages, they still don’t want to pay. Seems pretty shitty for the consumer.
The only people who really win from traditional legislation are lawyers (and plaintiffs counsel who use the long expensive process to blackmail people - which is 90% of civil cases)
If you had better laws, arbitration wouldn't be as necessary.
Measurement matters here.
I don't know how common this is, but yeah, this is a bare minimum that one should have with arbitration.
Very clear case, arbitration is fine. Fuzzy case, I would much prefer something that doesn't tip the scales in advance.
Note that the same bias problem exists with home inspectors. Realtors won't like inspectors that find things that kill deals. That one can be solved by hiring your own inspector with no input from the realtor.
If eg Uber runs you over or bumps your car, you have no contractual relationship with them, and thus they can't force arbitration on you.
That's why they have to write the arbitrary clause into their ToS that they need you to agree on. No forced arbitration.
Of course, if you don't agree with the ToS, Uber is also not forced to transport you. But that's fair enough.
If you don't like the contract, don't enter it.
Sounds like a great opportunity to start a new company that offers slightly less bad contracts and take all their customers.
IMO, no it is not. It should not be legal to force arbitration via ToS.
Letting entities that hold the vast majority of the leverage and financial/legal/political power in a contract opt out of the legal system and pick an alternative with a financial incentive to side with them is perhaps "fair" to you, but a lot of people would disagree on the "enough" part.
If the contract party A proposes gives too much advantage to party A for party B's liking, party B can make up their mind before they enter the contract.
Btw, if Uber is so powerful as you say, why do they bother with the tinkering around the margin and only force arbitration? Surely the bigger deal would be to jack up prices to thousand dollar per ride?
How's that being forced? (Though I would assume that in most jurisdictions you actually have to book a car and ride in it, to be bound by the more wide-ranging clauses in the ToS.)
It’s one thing to say the legal system is expensive and slow, let’s resolve our issues by a third party, and another thing to where there’s no further action you can take and the arbitration authority is being paid by the company.
Its simply becoming a parallel legal system for a different class.
Could you please tell me more? I am not aware of that case.
I assume the affected people can't just cancel their subscription?
Even though the car manufacturer does indeed pay for the arbitration, I never felt the arbiter was biased, and the judgement was completely in my favor.
Make it a public record with other bindings like one ruling applies to all customers etc. then at least it’s a system with transparency.
All we really need in the US is for arbitration to be optional, you can start with arbitration but if you believe on good merits you have a case and fail arbitration you should have the right to your day in court.
Throwing out our whole legal system because sometimes the lawyers make the most money is reductionist at best.
With arbitration, the arbiter can put an end to those shenanigans really quickly, because they're not legally obligated to allow for that kind of crap.
There are ups and downs to both systems. The benefits are there for parties of roughly equal size. The down side is there is no recourse if the arbiter makes a completely unfair judgement (e.g. because he thinks some law should not apply, etc).
> All we really need in the US is for arbitration to be optional, you can start with arbitration but if you believe on good merits you have a case and fail arbitration you should have the right to your day in court.
That just makes it the worst of both worlds! The whole point of arbitration is not to have a war of attrition, and to make the process efficient. Your solution doesn't take care of it. If I'm a business getting into a contract with another business, knowing that you can't outspend me in court is important, and lets both of us make a deal. If I know you still want the option to go to court, it's as if arbitration wasn't on the table.
A better system would be to change the law such that for certain, predefined offenses, you can't waive your right to go through the legal system (e.g. sexual harassment).
And of course, both parties should have say on who the arbiter is.
Finally, you are talking to someone who's had experience with arbitration. You might want to tone things down in your rhetoric if you don't have your own experience to bring to the table. Things might sound fine in theory, but can be really, really bad in practice. As an example, on How I Built This, whenever he's interviewing a founder that went to court to enforce a patent they owned, he asks if it was worth it. The answer almost always is "It was a bad idea and we shouldn't have filed a case." This is coming from those who won in court.
That's weird. Two things can be true at once: arbitrary is better than the American legal system, and the American legal system is better than what 80% of the global population live under.
> All we really need in the US is for arbitration to be optional, [...]
It is! You explicitly have to opt in, that's why Uber needs have it in their ToS that you accept. They can't just force it on you, when you have no contractual relationship with them.
"opt in" - as part of a 300 page TOS that you never read, that is modified 4 times annually and you are told to read all 300 pages again.
Just like when a Pull Request is way too long, the rational response is to close it and ask the author to make it more readable.
See, that's why court proceedings are public, so that the public can verify that courts are fair. It's also why judges are appointed by democratically elected politicians. Who appointed your arbitrator?
And of course the court system is bad and unfair in a bunch of ways. But it's starting from a much better place than secret, forced arbitration.
The criminal charges, if any, whether to the driver or to Uber management (possibly from the sham structuring of worker categorization and corporate structure in order to reduce tax liabilities while reducing control and thus endangering consumers) are proper in state criminal courts and can never be delegated to private courts.
Seems like that's an empirical question.
Companies are not doing this for faster problem resolution, they’re doing this to shield themselves from the consequences of their own actions.
The Uber case is extremely sad, people lost their lives and nothing brings them back, regardless of which justice system we use.
(Which is not to say there's not plenty to dislike about this whole case, including the fact it's forced arbitration...)
It does seem they're trying to get out of it somehow.
There was a dispute about whether the amount awarded was confidential or not (Uber contended it was; plaintiff contended it wasn't), but on the face of it, had plaintiff agreed to the confidentiality and non-disparagement clauses, Uber would have paid up.
I suppose it could be argued that Uber were trying to write in clauses they knew plaintiff wouldn't agree to, but it's not obvious to me that a different plaintiff wouldn't have agreed to confidentiality and non-disparagement.
(FWIW, it's not clear to me whether Uber have now in fact paid up; they made a statement to the Guardian that _suggests_ they have, but the fact that they didn't explicitly say so means I wouldn't want to draw that inference)
It's minor, but they are not accepting the award as-is, they are still trying to negotiating, albeit in a minor way, not by contesting the amount, but a confidentiality clause.
They love to negotiate confidentiality clauses, there's few cases without it, including a case by Mike Rafi's personal injury firm which resulted from an omission by Uber (and later Uber being much more anal about confidentiality). I think it's a strategy to avoid case law catching on.
Uber were the ones who forced arbitration ostensibly because it often lowers their overall legal and damages bills.
First to be clear, I am speaking in general terms. I know nothing about this case, I don't want to know anything about this case, but I have just scrolled through people's thoughts on arbitration here and thought I should offer a general alternative perspective. To be clear I'm not interested in blindly defending Uber either. So here goes...
Arbitration clauses will be found pretty much everywhere. They come under the auspice of Alternative Dispute Resolution (ADR) of which the top-three ways are: mediation, arbitration and ombudsmen.
The whole point of ADR is that:
1. there are only so many courts in a given jurisdiction and there are only so many judges in any jurisdiction, and both courts and judges tend to have large backlogs.
2. added to which going to court is expensive and time consuming. And if the other side has deep pockets and you loose, you end up paying the hourly rates of very expensive lawyers in smart shoes that the opposition employed because 600+/hour/person is peanuts to them.
So that's where ADR comes in. Its more informal, its cheaper to do and the costs side if you loose are kept under control.
Because ADR is an informal environment, this can also work in your favour. The timetable and parameters are flexible and the final agreement reached can easily be better than whatever a judge might have handed down after listening to both side's lawyers bicker.
Of course, in most jurisdictions nothing stops you from going to court first if you like. But most modern-thinking judges tend to take a dim view if you turn up in front of them without having given some sort of ADR a go first.
Is it perfect, of course not. But neither are the courts. Your outcome in court is effectively dependent on both side's lawyers and what judge you get, so you having a better outcome in court is not necessarily guaranteed !
Its not a regurgitation. Its the facts.
It applies to small businesses too.
A mom and pop shop will (or should !) also have ADR clauses in its contracts.
And the court will certainly take a very dim view if you try to sue a mom and pop shop without having tried ADR.
But Uber's terms explicitly force consumers to waive their right to go to court if they want to access Uber's service.
In most jurisdictions there are often laws related to unfair contract terms.
And even if there are no such laws, judges remain free to rule clauses and contracts void.
So you might waive that right in theory. But in practice I doubt you'll find it would hold up in court.
https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepc...
What people take issue with is forced arbitration. The problem isn't really about the arbitration at all, the problem is the part where you lose access to the courts. That should not be allowed.
“Nothing is stopping you” - most TOSes mandate arbitration, and unless you have something particularly egregious and a sympathetic judge the first thing on the docket is going to be a Motion to Dismiss.
And agreed. For better or worse. My minor stepdaughter was involved in a car accident. No liability was found, and the other party tried to sue her in Small Claims court which, in my state, you can’t sue a minor in (as no attorneys are permitted, so you’d have a minor representing themselves). The judge noted this, and told the other party “if you want to sue you will need to sue her parents or guardians”… and then tried to push us into binding arbitration anyway.
Which of course got my insurance company upset and involving attorneys on procedural/constitutional law, about challenging the judges authority to push us into that given there was no jurisdiction to hear the case in the first place so there was none to enforce us into arbitration (which in itself was an entirely separate farce, including where the “neutral” arbitrator berated me and said “I don’t understand why, as a person, if you know your insurance is going to be the one paying, you don’t just agree to give them all they’re asking for.”).