Arbitration is a process of resolving complaints without the use of the court system. A person basically signs a document waiving their right to a jury trial, and gets nothing in return. The rules for arbitration are different, the process is confidential, and an arbitrator decides the case as opposed to a jury. The family pays costs to prosecute a claim they would not have to typically pay in the court system (for example, a plaintiff does not have to pay a judge but does have to pay the arbitrator, which can be expensive). Many nursing home corporations and companies want this forum because it is confidential and there is no jury.
Nursing home companies get people to “agree” to mandatory arbitration by placing arbitration documents in long and complicated admission paperwork. Most people have no idea that they sign this document.
Mandatory arbitration “agreements” used to be illegal in New Jersey. When a person is doing nursing home admission paperwork, they are typically under great stress. The admission process of placing a loved one in long term care is emotional, and a close reading of complex legal documents is not typically primarily on a person’s mind at admission – their mom or dad is.
However, recent cases have changed the law and now these documents are enforceable. While these “agreements” are typically not a requirement for admission, this is not explained to people. They usually do not know one exists until there is a problem.
A bill was recently proposed to make mandatory arbitration illegal – once and for all. The bill is called the Arbitration Fairness Act of 2013. You can find information about it at: http://www.takejusticeback.com/node/164.
This law is a great idea and an effective fix to this problem. If a person wants to arbitrate a claim after an injury, they always have that right. No one should be forced to sign a document waiving their right to a jury trial before anything has happened. A quick call to your congressperson in support of the law is an easy way to help effectuate this important change.