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New York Times Series Details the Problems with Forced Arbitration

Arbitration was historically used as a means for large companies to resolve disputes among themselves without resorting to protracted litigation before the courts. Unfortunately, a big-business campaign of lobbying and judicial activism has expanded the reach of “mandatory arbitration” to disputes involving individuals, such as nursing home patients, who lack equal bargaining power or sufficient understanding of the law. As the American Association for Justice recently noted, “Forced arbitration is a corporate bullying tactic designed to kick people out of court and eliminate their right to seek justice.”

Arbitration Often Provides Cover for Nursing Home Abuse

The AAJ’s statement came following the publication of a multi-part series in the New York Times detailing the multitude of problems people face when dealing with mandatory arbitration provisions in contracts. For example, the Times cited a case involving the legal guardian in Illinois, who was told unless he “agreed to arbitration … doctors working at the nursing home would not treat” a 90-year-old dementia patient who required “prompt care.” The guardian, an attorney himself, told the Times it was the “most obnoxious, unfair document I have ever been presented with in over 30 years of practicing law.”

Indeed, guardians and caregivers for elderly relatives are often pressured into signing mandatory arbitration agreements. Just recently, a Tennessee appeals court upheld an arbitration agreement signed by the daughter of a nursing home patient who died, allegedly due to negligence. The daughter testified nursing home officials told her they would not treat her mother without such an agreement. Despite such coercion, the court said the agreement was still valid.

The Times reviewed thousands of arbitration cases from around the country as part of its report. Among other things, the Times found “[b]etween 2010 and 2014, more than 100 cases against nursing homes for wrongful death, medical malpractice and elder abuse were pushed into arbitration.” And even in cases where victims or their families won at arbitration, “patterns of wrongdoing at nursing homes” are kept private and “hidden from prospective residents and their families.”

The Problems With Arbitration

You may wonder what the big deal is about going through arbitration instead of a traditional court. As the Times noted, arbitration creates “an alternate system of justice” where the rules are generally stacked against the plaintiff. In a normal court, there are clear rules of evidence which all parties must follow—or face sanctions if they do not. In contrast, the Times noted “destruction of evidence” is not uncommon in arbitration, where the rules of evidence may be different or even non-existent, and a plaintiff may actually be fined if he or she tries to challenge the defendant’s claims.

A private arbitrator may also be riddled with conflicts of interest. In a courtroom, the judge must be impartial, and either party can seek to replace a judge who is not. But mandatory arbitration clauses often allow the defendant—such a nursing home—to unilaterally select the arbitrator without any regard for potential conflicts of interest. And as the Times found, this leads to a system where “some arbitrators cultivate close ties with companies to get business.”

Are You Affected By Mandatory Arbitration?

If you deal with a nursing home or any company demanding you sign a forced arbitration clause as a condition of service, it is important you seek advice from an independent and experienced Tennessee personal injury lawyer who will fight to protect your rights. Contact the offices of Fox & Farley, Attorneys at Law, in Clinton or Knoxville to speak with someone right away.

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