My biggest problem with this is that "fairness" isn't objective and impartial, which is in contrast to the intent of U.S. law. Fairness is a function of one's life experiences, which may differ between arbitrators and subsequently shift the balance of equity between claimants. This issue compounds when multicultural parties are adversaries in arbitration. Plus, arbitration provisions are themselves subject to the selected forum's laws of contract construction. This means that a court could throw out the entire contract. Oh right, and then there's the issue of judgment enforcement: once your arbitration is decided, you'd still need a court to enforce the judgment.
Courts generally enforce arbitration clauses even when they're consumer-facing and one-size-fits-all. You'd still have to go to court to enforce the claim if one party didn't pay it, but you probably wouldn't have to re-argue the case; the courts apparently just verify that any procedural agreements were upheld and then accept the arbitration decision.
From reading up on pitfalls of arbitration clauses, it seems the opposite problem is stickier: arbitration is by design not subject to legal appeal, and attempts to carve out rights of legal appeal in arbitration clauses have failed in court.
I'm referring to some problem that renders specific provisions of a contract unenforceable. In some jurisdictions, absent a severability clause, the entire contract could be thrown out, meaning that judge.me would no longer have consent of the parties to arbitrate the dispute.
But I agree: arbitration vs. litigation is typically an "either or" scenario; you don't get the best of both worlds.
