Often when a parent or other family member gets to a point where they cannot safely live at home and take care of themselves due to their age or to health problems, the family must decide if that person needs to go into a nursing home. Alternatively, the elderly or otherwise disabled family member may decide on their own that they want to live in a care facility. In either case, when someone is admitted to a nursing home, part of the paperwork they or someone from their family signs is an arbitration agreement.

These agreements might seem innocuous at the time a person enters a skilled nursing facility, but problems with them tend to crop up whenever there’s a legal dispute. Often the case involves allegations of abuse and neglect after a beloved family member unexpectedly passes away while living in a nursing home. These situations are rife with emotion, including grief and anger, but before anything can move forward, it’s this arbitration agreement paperwork that must be resolved.

You may be asking, what is the difference between arbitration and mediation? Before diving further into the issue, it’s necessary to be clear on the differences between arbitration and mediation. It’s easy to confuse the two, but they aren’t the same.

What is an arbitration agreement?

An arbitration agreement is a contract or a separate clause in a broader contract that stipulates that all parties agree to resolving any disputes out of court, through a process called arbitration. Arbitration agreements appear in many types of contracts, often as fine print that most people never read, e.g., in a wireless service provider agreement or an employee’s new hire paperwork. Most of the time, people aren’t even aware they’ve signed one.

However, in the case of nursing homes, an arbitration agreement can’t be buried or hidden, and the agreement must be clearly explained to the resident and their representative in a way that they can understand. Furthermore, signing the arbitration agreement cannot be a condition for admission to a facility or for the nursing home to continue caring for the resident.

What is arbitration?

Arbitration is a method for resolving legal disputes in which a neutral arbitrator, or a panel of three neutral arbitrators, act as judges who will look at all the facts and make a legally binding decision on the case. The neutrals who work as arbitrators are typically attorneys or retired judges. Often, these neutrals also have expertise in the area(s) of law and the issues related to the types of disputes they’re chosen to arbitrate.

The ground rules for arbitration are flexible and open to negotiation. However, most arbitrations share the following basic rules:

• Both parties – the plaintiff and the defendant – choose the arbitrator from a list of arbitrators. In the case of a panel arbitration, where there are three arbitrators, each party chooses an arbitrator and the two arbitrators choose the third, who is the presiding arbitrator.
• Arbitrations typically take place in a conference room and not a courthouse. There, the presiding arbitrator lays out the ground rules and each party, or their lawyer, makes their opening statements and presents evidence to support their side of the case.
• The arbitrator may ask questions and both sides may also deliver closing arguments and/or submit post-arbitration-hearing summaries.
• Lastly, the arbitrator decides the case, and awards any damages. The arbitrator may also include a written opinion with their decision. The arbitrator’s decision is binding and, in most instances, cannot be appealed.

What is mediation?

While mediation is another alternative to resolving cases in front of a jury and/or judge in a courtroom, it differs from arbitration in that the mediator isn’t the person who decides the outcome of a disagreement. Instead, the mediator helps both parties to negotiate and come to a mutually acceptable outcome. Like most arbitrators, mediators are also neutrals who are practicing or retired attorneys, or retired judges who usually have expertise in the area of law related to the dispute at hand.

Mediations occur on neutral ground, not in a courtroom. They’re private, confidential and according to Federal law, privileged and inadmissible in court with a few exceptions – fraud, waste and abuse, or criminal activity. Furthermore, mediators and their case notes cannot be subpoenaed in court by the defendant or the plaintiff.

Arbitration agreements and nursing home abuse and neglect

The most common types of litigation related to nursing homes has to do with allegations of abuse and/or neglect. These cases are complex and difficult to decide. Even in instances where a resident has bruises or sores, or was seemingly left alone and fell or collapsed, etc., circumstances aren’t what they appear to be on the surface to a family member and instead require an arbitrator or jury trial to determine the facts and whether there was abuse or other negligence involved.

Most people want to be independent regardless of their age. Even living in a nursing home, doesn’t change that. For example, if one’s elderly father is supposed to use the call button to request help getting to the restroom but refuses to do so, he may then fall and break his hip. The injuries might appear the same to a loved one as they are for a resident of another nursing home who did press the call button repeatedly, but no one came, so they tried to get to the bathroom on their own and fell.

Furthermore, residents in nursing homes are in delicate health with multiple comorbidities. A bedridden family member might have to be turned and moved to change bedding, for baths, etc. Their skin can be sensitive and thin, making them prone to pressure sores. To a loved one, these might look like bed sores due to neglect. Alternately, an elderly parent might have no appetite and refuse to eat. Appetite loss can be an early sign that death is near and is part of the natural process. The facility can’t force a resident to eat in most cases. And no number of caring staff can prevent a person from passing away due to natural causes from advanced age.

However, abuse and neglect do occur and it’s important to remember, that regardless of whether an arbitration was agreed to or not, the agreement never prohibits a family member from reporting suspected nursing home abuse and neglect to the proper authorities. The arbitration agreement covers civil disputes and not criminal ones.

When a family member does die or experience declining health while in a nursing home, there can be a feeling of denial and a rush to blame the facility and its staff. That’s when they may consult their attorney and things escalate into a full-blown dispute.

Arbitration versus a jury trial in nursing home cases

In nursing home cases, especially when there are allegations of neglect, typically, the plaintiff’s trial lawyers prefer a jury trial. However, the facility typically prefers to decide the issue in arbitration. In an emotional situation such as an abuse case, the lawyers for the family might decide the jury is likely to side with the family and not the nursing home. The family members involved as plaintiffs might assume that if the case goes to arbitration, the arbitrator will favor the nursing home or decide something that is less than appropriate given the circumstances.

However, going to court has its own set of cons. It can take years to decide a nursing home case in court. If the resident is still alive when the suit was filed, because of their advanced age or poor health, they may pass away before the issue is resolved or be unable to appear in court because of their declining health.

Nursing homes favor arbitration because these types of cases are long and drawn out when they go to a jury trial. They view arbitration as a way to quickly resolve disputes and to mitigate circumstances where a resident’s health could worsen with the strain and stress of going to court. Arbitration also saves them time and money. But arbitration isn’t without its own issues.

With a jury trial, there’s usually the possibility of an appeal. That’s not the case with arbitration. As stated earlier, most arbitration decisions are binding and final. They can’t be reversed or altered with an appeal. Furthermore, there is less control and no room for compromise in arbitration. The neutral as arbitrator is the decision maker. Before a nursing home related disagreement can move forward, the question of arbitration or jury trial must be decided.

The question of who can sign a nursing home’s arbitration agreement

As discussed above, the family members and their lawyers want to go to court and have a jury decide the case, and the nursing home wants to go to arbitration to protect the health of the resident and or to save time and money. Therefore, the first thing that gets disputed by the plaintiffs is the arbitration agreement itself. Often, that’s the first issue that must be determined before an arbitration or jury trial can go ahead.

Typically, if the resident isn’t cognitively impaired and is capable of understanding the arbitration agreement, they are the person who signs it. If they can’t sign because of an impairment, then the family member who has power of attorney signs the arbitration agreement. Sometimes, that’s okay. Other times, it turns out the language in the power of attorney was complicated and only covered specific areas, e.g., finances, but the family member who signed assumed they had legal authority to also sign the arbitration agreement. Perhaps, their elderly parent went into rapid decline and was not able to alter their power of attorney to include legal authority, etc.

In a dispute, often a judge must look at all the facts to determine if the patient had the mental capacity to sign the agreement when they were admitted and/or if the person who did sign had the legal authority to do so. If the judge determines the person who signed was competent and had the authority to sign, then the arbitration agreement stands, and the judge compels an arbitration. On the other hand, if the judge finds the arbitration agreement invalid, then the case can go to court. At Miles Mediation, we often have cases go from potential arbitration to mediation during this phase while both parties wait for the judge to decide.

The role of mediation in nursing home cases

Mediation is ideal in cases like these because there’s a lot of emotion on the part of the plaintiff. It’s true that no amount of money can ever replace the loss of a parent of other close family member. And settling a case of suspected nursing home abuse and neglect out of court via mediation doesn’t mean the grief is gone and everyone is now happy.

Instead, mediation allows both plaintiffs and defendants, the families and the nursing homes to come together with the help of a skilled neutral mediator and come to a compromise and an agreed upon resolution that allows all parties to move on. The family can put their loved one to rest, and the nursing home can get on with the business of caring for and improving the care of its residents. And, unlike arbitration, a mediation places the control of the decision in the hands of both parties and not a single person or group of three people. Furthermore, mediations are non-binding. In cases where an agreement can’t be made via mediation, the process can still be converted to an arbitration. Nursing home cases are complicated, but mediation can help alleviate some of the complex issues involved in these difficult cases in ways that seeking dispute resolution in court cannot.