Ending unfair arbitration: fighting against the enforcement of arbitration agreements in long-term care contracts.

Although provisions requiring nursing facility residents to agree to mandatory pre-dispute arbitration are now ubiquitous, many courts have refused to enforce these provisions and have adopted a variety of legal arguments to do so. Arbitration can be expensive and biased in favor of the nursing facility. It limits access to courts, discovery, available remedies and precedential value of decisions. Oftentimes, only after a nursing facility’s negligence has caused a resident severe injury or death, does the resident or family member discover that, upon admission to the nursing facility or during their stay, the resident became bound to settle disputes in arbitration, ostensibly giving up the resident’s constitutional right to a jury trial. While arbitration clearly benefits the corporation operating the nursing facility, mandatory pre-dispute arbitration can be detrimental to a nursing facility resident who has been harmed by the actions or inactions of the facility. This Article will discuss the many tools litigators have to challenge the enforcement of arbitration agreements for nursing facility clients. Additionally, this article will examine proactive ways elder law attorneys can help clients avoid the enforcement of pre-dispute arbitration in the first place. Part I will provide the legal context for arbitration agreements. Part II will address the different strategies litigators have to challenge enforcement of binding arbitration agreements.