> mutually agreed upon

So, buried in size 3 font on page 355 of a document included by reference in the 200 page TOS and that can be found at the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of the Leopard" -- that one is to have read in full by legal counsel before spending $30/month on internet access?

Right.

I know that courts know about contracts of adhesion, but suggesting that there's anything mutual about them is absolutely grounds for a little prodding.

And what company is going to write in a default judgement for the plaintiff in their ToS?

The arbitration vendors (and lets be clear...they are vendors not a system of justice) could and probably should write this into their rules.

They rely on the appearance of fairness to enable corporations to use their services against consumers/employees. If they aren't careful there is a risk of the courts increasingly observing how tipped the scales of arbitration are.

The jurisprudence, to the limited extent I understand it, relies on the assertion that arbitration is fair. Upholding that believe is in the arbitrators interest.

>(and lets be clear...they are vendors not a system of justice)

This is misleading, neither America nor any other country has a justice system. Justice is often a goal of the legal system but it is not a direct attribute of the system.

Most of Europe, at least, isn't bound to the letter of the law, but rather the spirit of it. I'd assume this makes them much more a justice system than the American version.

To be fair, the "justice system" is a commonly accepted name for the legal system, in the same way that you would call it the "Department of Defense" or the "Department for Health and Social Care."

How would you design a Justice system then?

that is an absolutely fair critique of my word choice. Totally agree, and I'm usually the person making that comment.