I’m reviewing a contract for a memory care facility for my husband. As is evidently standard for the industry, there is a binding arbitration agreement that is part of the contract. I understand that legally a facility is not allowed to deny admission if I decline to sign the arbitration agreement. I have not discussed it with their business office yet. But I was curious if others have declined to sign the binding arbitration clause, and if so did you experience problems? My consultant who has helped me find this place says it has not come up before. I wonder if folks don’t read the contracts or, as is noted in articles about the subject, they are usually under duress, or not mentally competent, when they do sign. Thanks for any experiences on this!
I know it's a different scenario, but we sued the seller of the home we bought. The sales contract requires an attempt at arbitration before going to court, so we did that. The mediator came to our house, questioned each of the parties, said to me that we were unquestionably cheated by the seller and deserved the amount we were seeking, took his check for $1500, and the seller decided he wasn't going to go with the decision.
After another three years, we finally went to court, and the judge told us to try mediation one more time. We ended up settling the case for the exact same amount we were "awarded" three years earlier, but the attorneys got 40% of it, and we spent thousands more in expert witnesses and other expenses. We received a fraction of what we were awarded.
Binding arbitration would have solved that problem from the start, but in the home sales contract it is required but isn't binding.
My father went into assisted living and I doubt my brother who has the POA and handled his admission consulted with an attorney before he signed the contact.. I bet most people sign without knowing exactly what such a clause or everything in the contract actually means. Law can be very complex.
The good thing is I believe legal issues are not all that common and the chance my brother will end up in legal dispute is very small. Even if he does I believe arbitration does not automatically mean "you lose". There are pros and cons with it, I believe. Consult with the proper attorney if you have any concern.
My YB had a bad experience with an improperly treated infection in a bad cut on his hand. He wound up in the hospital with a severe infection and nearly died.
B/C of the BA he signed, when he went back to the original hospital for some $$ for compensation, he was told he'd signed an arbitration contract and gee, guess what? He lost. Big time. Couldn't work for 6 months and has never been 100% since. They gave him a token amount of about $2500 for 'good faith' and also, if he cashed the check, he was further excusing himself from any legal action against the hospital.
I'm no attorney, but I believed my son on this.
Talk to an atty in your state if you still have questions.
According to NY Times and other articles on the subject, there are a number of concerns. You are giving up the right to a trial by jury and there may be instances where that is called for. You cannot appeal an arbitration decision. Facilities may select an arbitrator who has a vested interest in deciding in their favor. Google binding arbitration nursing homes and there is a good amount of information on this. I appreciate everyone's input and am still mulling this.
Most civil cases that are scheduled for trial are forced by court order through the arbitration system first.
if a problem happens that is a violation of state law you will still have a legal remedy in the court system.
There is binding arbitration and just plain old arbitration (non-binding). If the former is signed then the parties are obligated to accept the ruling of the arbitrator, but that doesn't mean that it cannot be appealed in court after the decision has been made. If there is non-binding arbitration then the ruling amounts to no more than a suggestion for settling the case.
Certain things can make arbitration clauses uninforceable, such as "fraud".
I would discuss this with an elder law attorney. It is worth the hour of time and pay to be certain of your rights for your state. Forums provide "opinions" but not expert advice. Wish you the best.
When it comes to making decisions on personal legal or medical questions my experience has shown me to stay off the internet and contact a lawyer or doctor. These subjects can be so complex, particular to certain facts and situations and so life altering that you don't want to make a decision based on what you find on the internet. You may find the right answer online; or not. You can do some research but I would never make the final decision based on that.
I heard a comedian recently say that he had dry hands so he went on the internet and found information that said the dryness would cause him to lose all his fingers! He freaked out and lost like 15 lbs. over 3 weeks.
Binding arbitration is / will keep you from suing.
You need to weigh the pros and cons.
As others have said, often a binding arbitration is boiler plate, and perhaps more so in areas of elder care facilities.
Binding arbitration doesn't mean that you would NOT be treated fairly.
You certainly should be even in arbitration.
Find out 'who' the arbitration person / people are... are their 'hired' or represent the facility? If so, the cards are stacked against you for obvious reasons.
Perhaps you can agree or ask about you having input as to who the arbitrator is - or perhaps it could be a panel of three. I'd ask an attorney about this consideration.
I would question (or certainly at the very least, I am surprised) to read that arbitration is illegal. I would do my due diligence and research this. Even if it is (???), you may be caught between a rock and a hard place. There may not be a facility that would take your husband without this same boiler plate language.
Gena / Touch Matters
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