Mandatory arbitration remains a hot-button topic in courts across the country as well as in the halls of Congress. Over the past year, our Illinois nursing home abuse attorneys have talked with many about the ways that these arbitration clauses unfairly take away basic legal rights from unsuspecting nursing home residents and their families. Many nursing homes try to get community members to sign mandatory arbitration agreements before admittance into the facility. These agreements require disputes that may arise in the future-such as complaints alleging nursing home abuse and neglect-to be handled via arbitration and not the regular judicial system.
As one might expect, the arbitration process is usually far more favorable to nursing home companies, making it very difficult for residents and their families to receive fair redress and accountability when misconduct occurs. Fortunately, some lawmakers are working to address the problem through a piece of federal legislation known as the Arbitration Fairness Act. Last week an editorial in the New York Times summarized the goal and the bill and suggested that all community members should support it.
The problems with arbitration are many. Arbitration fees can be quite costly, making it prohibitive for some victims to enforce their rights at all. In addition, arbitrators are not bound to make decisions based on the law, as in the regular civil justice system. Therefore, arbiters often make decisions and enforce procedures that systematically favor the companies defending in the case. The arbitration process is done in secret with no appeal, and so rarely do those involved have any other way to seek justice when the arbitration is mishandled. When it comes to nursing home neglect, our Illinois nursing home lawyers know that this means that mistreatment that might spark community outrage and ensure correction is instead swept under the rug. We are all made less safe by the use of these arbitration requirements in abuse and neglect cases.
The editorial explained that there is a need for legislation to reverse these dangerous trends. In the past, courts routinely refused to enforce these arbitration agreements, upholding the rights to fair access to the justice system. The 1925 Federal Arbitration Act allowed these agreements to be upheld. However, the purpose was to streamline disputes between commercial entities. It was never intended to be a way for companies to bully consumers out of the courtroom. The Arbitration Fairness Act would reverse this trend by prohibiting enforcement of mandatory arbitration clauses in consumer and employment contracts.
Interestingly, the editorial compares today’s arbitration with a long-forgotten process occasionally used in the 1800s known as “conciliation.” Conciliation was essentially an alternative legal process used for only a short time-usually reserved for the “underclass” of society, like recently-freed slaves and new immigrants. It wasn’t until later that society rejected the notion of conciliation courts as counter to the demand that all residents are equal and deserving of fair access to the court system. Arbitration, when forced upon consumers who have no choice but to sign or walk away, similarly acts as an unacceptable alternative system that places regular community members on unequal footing.
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