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Nursing Home Abuse & Mandatory Arbitration Agreements

When a person moves into a nursing home, the resident and his or her family are often presented with stack of admissions documents that must be read and signed. Often buried in the paperwork: A requirement that the resident agree to settle any disputes with the assisted-living facility using binding arbitration, rather than the courts. This can put a resident at a serious disadvantage when disputes arise--particularly if the resident becomes a victim of nursing home abuse.

Understanding Arbitration

Over the last few decades, alternative dispute resolution, ADR, has become increasingly common in the legal profession. At its most basic level, the goal of ADR is to get disputes out of the courtroom. Unquestionably, the U.S. justice system has some shortcomings:

  • It's slow: Lawsuits can often take years to resolve
  • It's expensive: Legal fees can quickly pile up, particularly when the proceedings are drawn out
  • It's adversarial: This isn't always ideal, particularly if you want or need to have an ongoing relationship with the party you're suing
  • There's no privacy: Normally every piece of paper that's filed and every word spoken during a trial become part of the public record

Arbitration is one form of ADR. When you arbitrate a dispute, you take it to a private, impartial person or panel (the arbiter or tribunal), which hears both sides, reviews the evidence and then renders a mandatory, binding, legally enforceable decision.

What's the problem with arbitration? Unfortunately, mandatory arbitration offers several disadvantages to the average nursing home resident:

  • Arbiters are supposed to be impartial--but that's not always the case. After all, arbiters need to be paid and the parties involved in the dispute make the payments. If you're a nursing home resident, you may only go to an arbiter once. But that nursing home may be hiring the same arbiter over and over and over again. And the arbiter will quickly realize that if he or she rules against the nursing home too often, then the facility will simply find a different arbiter.
  • Privacy isn't always a good thing. Lawsuits are a matter of public record, so it's relatively easy to see how many times an assisted living facility has been sued. But because everything that happens in an arbitration is confidential, nursing home residents and their families have no way of knowing how often the facility has disputes with its residents.
  • It's difficult--or impossible--to overturn an arbitration decision. Our court system has checks and balances. If a judge makes a mistake, you can appeal the decision to a higher authority. That's not the case with arbitration, where rulings are usually final.

If you, or someone you love, is the victim of nursing home abuse and there's a mandatory arbitration agreement in place, talk to a nursing home abuse attorney today. Your lawyer can review the contract, determine whether it's legally enforceable and explain your legal options.

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