Forced Pre-Dispute Arbitration Gets Federal Attention
Throughout the country, trusting families are signing nursing home, rehab, and assisted living admission paperwork for someone they care deeply about. These documents are technical, long, and complicated. Hidden in many of these agreements is language that significantly curtails a family’s ability to hold a facility accountable if something terrible happens – including rape, assault, neglect, and death. This language is called “pre-dispute” or “forced” arbitration language.
Pre-dispute forced arbitration is where a person agrees to give up their right to sue in court if an injury or death happens. To be clear, your loved one’s admission to the facility cannot be denied if you don’t agree to arbitration and you get absolutely, 100%, nothing in exchange for agreeing to pre-dispute arbitration.
Until 2010, it was illegal in New Jersey for facilities to insert forced pre-dispute arbitration language in their admission paperwork. Unfortunately, since a case from 2010 struck the law banning this practice, these protections no longer exist.
Arbitration language in admission agreements is misleading. It might say things like: “arbitration saves money.” This is only true for the facility. Not only does a plaintiff have to pay an arbitrator for their time, which they’re not required to do if in court, but a study by an insurance company and funded by nursing home lobbyists found that plaintiff awards are over 30% smaller at arbitration.
Arbitration language may also say something like: “arbitrators will be fair.” To be clear, the facility has no idea who the arbitrator will be, and if an arbitrator goes completely against the rules there are no appeals.
Arbitration language may say something like: “arbitration saves time.” There are zero studies that show this is even remotely true.
In the end, you get absolutely nothing in exchange for agreeing to pre-dispute arbitration. Arbitration is always something that you can agree to after something terrible happens, if for some reason it’s a good fit.
Unfortunately, it’s rarely a good fit. That’s why there’s been so much scrutiny about arbitration recently. The NY Times recently reported on house members of congress attempting to address the injustices of arbitration. The same paper recently produced an excellent series chronicling the abuses of forced arbitration.
You don’t need to agree to pre-dispute forced arbitration. If you see it in admission paperwork cross it out or don’t initial or sign there. Not only do you get nothing in exchange for giving up your constitutional right to trial by jury, but you may be making it much more difficult to hold someone accountable if your loved one is injured or killed.