As a consumer, I’m not sure I understand the disdain for forced arbitration. I understand discord desires it because it helps prevent rulings becoming case law.
But I am going through forced arbitration right now in a personal lawsuit, and part of it is bleeding to a third party that does not arbitrate, which means real court. By all accounts I have been assured by my lawyer we are in a better position pursuing arbitration over litigation. Both seem to be quite expensive options, though fortunately there is a clause for legal fees to the prevailing side (and in my case evidence in my favor is airtight).
Forced arbitration reduced your options. You can agree to arbitration if both parties desire it when a dispute arises.
One of the biggest consumer protections that a forced arbitration clause can kill is a class action lawsuit. If a corporation harms each consumer for $.30, there’s no real way to bring an individualized case over that. A class action is a viable option to hold the corporation to account.
That makes sense, thanks for the context. Though, I’ve been a part of maybe 10 class actions in my life so far, and all of them amounted to less than $50 each. I suppose they are more effectively punitive to the corp than compensatory to the aggrieved.
> I suppose they are more effectively punitive to the corp than compensatory to the aggrieved.
Generally yes. One of the whole points of a class action is that they can address harms that are de minimis to an individual, but pretty bad for a society as a whole when repeated millions of times. So, generally the harm to you was small (probably small enough that you didn’t notice, or wouldn’t have bothered fighting the corporation on your own over it), so the compensation to you is also generally small.
As a class member, you can opt out of the class, and sue the company individually, if you think you’ve been significantly damaged more tban a typical member of the class. There’s usually a proactive step you have to opt out at some point.
As someone who has also been in an arbitration (though not forced), and had a generally decent outcome, I still understand why consumers dislike these policies.
Court is an essential part of government function that allows two parties to be judged fairly in a dispute. It's the great equalizer- at least in theory.
While the act of going to court with a lawyer is expensive, court itself is not expensive.
Moreover, court cases can be used as precedent for other court cases. Evidence found in one case can be used in another.
Arbitration works very differently.
Firstly, an arbitration clause may allow for the party with more "clout" to specify a less fair arbitration body. While the matter of arbitration fairness is complex, it's certainly not wild speculation that some bodies side more with some kinds of entities than others.
Secondly, arbitration requires up front payment. This can actually be a good thing for consumers in that it forces both parties to pay, but it costs a lot of money- thousands of dollars. Most people aren't going to spend that kind of money.
Thirdly, arbitration is not court, and findings in arbitration can't be used either in court, or in future arbitration cases. This provides an advantage to the big company, since they know what they might face, but each time a consumer goes after them, they're starting essentially from scratch!
Lastly, it precludes collective action. Each Discord user who feels wronged may not have the resources to arbitrate on their own, which is why the courts allow for class action lawsuits. Forced arbitration takes that option away.
Companies mostly want it because it's a lot cheaper to do discovery in an arbitration, actually. Some kind of unfavorable precedent is extreme tail risk because no matter what you're almost certainly going to settle, that isn't really a factor in legal department decisions. But real civil discovery is an extremely lengthy and expensive process.
No they want it because it stops class action lawsuits, arbitration is notorious for being biased in favor of the companies that pay them, and it removes your access to a jury trial (eg one where the judge is not being paid by your opponent).
The claim businesses make is that it is more efficient than court for people, but if that were actually the case then they would not need to constantly try to add forced arbitration.
Forced arbitration is only a win for the business, and the entire intent is to make it so that the amount of harm they have to do before it is worth anyone suing them has to be measured in thousands of dollars for any person. The only way corporations are held to account for the majority of their crime is through increasingly impossible class action lawsuits.
But I am going through forced arbitration right now in a personal lawsuit, and part of it is bleeding to a third party that does not arbitrate, which means real court. By all accounts I have been assured by my lawyer we are in a better position pursuing arbitration over litigation. Both seem to be quite expensive options, though fortunately there is a clause for legal fees to the prevailing side (and in my case evidence in my favor is airtight).
Any enlightenment would be wonderful.