Arbitration Over Accountability? The State of Mandatory Arbitration Clauses in Nursing Home Admission Contracts

Florida Coastal Law Review, Vol. 16 (16 Florida Coastal Law Review 153), 2015

36 Pages Posted: 3 Feb 2019

Date Written: January 15, 2014

Abstract

Clauses binding parties to mandatory arbitration to settle disputes appear with increasing frequency in contracts for goods and services. With the United States Supreme Court supporting alternative dispute resolution since the Warren Burger era, attempts by states to legislate against this practice typically fail within the federal courts in the face of the Federal Arbitration Act. This article focuses on the negative impact that these mandatory arbitration clauses frequently impose upon the public in nursing home admission contracts, with family members in high-stress situations unknowingly forfeiting their right to bring proceedings in open court against the nursing home when the facility commits misconduct.

Knowing that any attempt to categorically bar these contracts will ultimately fail before the present-day Supreme Court, this article focuses on a different weapon to fight these clauses in nursing home admissions contracts: the often-vague but still-powerful doctrine of unconscionability. By surveying recent caselaw concerning these contracts, this article ultimately provides practitioners with the most common factors that courts in various jurisdictions consider when deciding whether to invalidate a mandatory arbitration clause in a nursing home admissions contract, thereby giving this amorphous doctrine a viable and valuable shape in the context of these agreements.

Keywords: arbitration, nursing home, contract, arbitration clause, mandatory binding arbitration, Supreme Court, unconscionable, judicial process, contract dispute, court, arbitrator, elder law

Suggested Citation

Pomerance, Benjamin, Arbitration Over Accountability? The State of Mandatory Arbitration Clauses in Nursing Home Admission Contracts (January 15, 2014). Florida Coastal Law Review, Vol. 16 (16 Florida Coastal Law Review 153), 2015. Available at SSRN: https://ssrn.com/abstract=3320023

Benjamin Pomerance (Contact Author)

Independent ( email )

United States

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