I have been looking for an AL residence for Mom and was on the verge of being accepted by a great bed & board place close to home when I found the arbitration clause in the admission contract. Our elder care attorney recommended that we NOT accept those terms, specifically citing abuse as a point-in-case of serious issues. The facility said they would not remove the clause following their attorney’s advice.
Accepting arbitration means giving up your Constitutional Rights (your ability to have trial by jury) and there is no way of knowing or finding out what the history is for someone’s arbitration record because they are not part of public record like happens with court cases.
I have no problem with using alternative resolution methods when appropriate, I just don’t want to be “locked in” to them in contract regardless of the situation. Any assistance on this would be appreciated - thanks.
I'd ask if it's binding or non-binding arbitration. If it's non-binding, it's just an extra step that must be taken before going to court in order to preserve your rights to recover attorney fees if you win.
Personally, I think arbitration is worthless if it isn't binding, because the person the mediator finds at fault can just ignore it and say "see you in court." That's what hap!ened to us when we were in a lawsuit with the people who sold us our home. We won the non-binding arbitration, were awarded a certain amount of money, and the loser said, "Yeah, no. See you in court."
That added about two years and tens of thousands of dollars to the case, and on the day we were to go to court, the judge required the parties to go into mediation and work it out. We were awarded the same amount the first mediator had awarded us, but the lawyers got a bigger chunk of it, and we were left with coming out about even with no actual justice.
Still, I wouldn't advise suing anyone for anything unless you're talking about millions of dollars at stake. It just isn't worth it, and frankly, you wouldn't win millions from a board and care home over the death of an elderly person.
Bottom line, it probably doesn't matter if there's an arbitration clause in there or not. You'll get screwed over one way or another and the lawyers will always win.
Fire that attorney and get one who CAN get around the arbitration agreement once signed.
Most ALF do have arbitration clauses. Important to know if binding or not. Because there is nothing otherwise to say, once through arbitration without a settlement the case can go on in the case of serious problems.
This is something you will have to make your best decision about. You cannot tell what a future will hold without your crystal ball and you cannot prepare yourself for every happenstance. Most cases settled through arbitration involve falls, etc. or accusations of "you didn't send Auntie to the ER when you should have/fast as you should have, and etc.".
Wishing you good luck in your decisions.
I have found that in order to receive much needed services, cooperation with the norm and the system is necessary.
Otherwise, use the money you are paying the attorney to figure out what the law says (in a hypothetical case); use it to pay for caregivers to come to Mom in her home. However, you will get caught up in the "contracts" required for that too.
So, I am going to answer that in your case (for your Mom), that "NO", you can't get around the arbitration clause and should not try.
If it makes you feel better, have the attorney write in a clause: "arbitration except in abuse or crime". The home already does not want to deal with you.
It is a good thing to wonder about our constitutional rights, imo. Choose your battles carefully when there is an immediate threat, on a hill you are willing to die on. In the meantime, fly below the radar, keep a low profile, do the right thing to get care for your Mother.
Have you read the fine print about arbitration in the financial contract with your attorney?
The reality is justice is a rare thing and even if the case went to a criminal hearing more than likely the prosecutor would plead it out and you still would never get full justice or a trial by jury.
And even if you got a trial by jury it does not mean you would win said case. People get away with bad stuff ALL the time.
Justice in this world is not reality. Unless it's Law and Order or some other crime show on TV.
For every case where a person got loads of jail time there are thousands of people who are never punished for their actions and thousands of victims who never get justice.
If the facility is good I would place mom there.
Ask if your state has a law that states no contract can legally void state law and remedies therein. AZ does.
I doubt if most people bother to read the terms and conditions of shrink wrapped software. I compliment you for that level of concern and scrutiny. But there's nothing we as consumers can do about them anyway, if we want to use the software, or what the facility offers.
I wish that someday someone like Ralph Nader would institute a class action suit against software providers with their oppressive shrink-wrap clauses, but the software providers have a lot more money and clout and likely would appear as third party defendants. to overwhelm those who opposed them.
Personally, I'm not surprised a bed and board company would use an arbitration clause; I wouldn't think it has the resources of the more commercial counterparts, or deep pockets of chain facilities.
I would NOT sign this contract. You may be unable to find an AL company that doesn't use alternative solution methods, but I think you would have more success addressing problems with an AL company that does have a strong presence in the field as opposed to a company perhaps owned by a couple, a small group, or even an LLC.
Go by your instincts; they're sound.
On the other hand, I'm not sure I would be happy to place my loved one in the care of people I expect to be suing at some point.
If you place your mother in this "great" board and care home, and the worse comes to the worst, and you fear for her wellbeing, no contract can prevent you from moving her out again. The worst that can happen is that you can't sue for damages but will have to pursue your complaint through arbitration; even then, if abuse qua abuse is suspected this should be reported to the proper regulatory and enforcement authorities.
What was the outcome of the cases your elder care attorney cited?
To speak my cynical mind, it does not altogether surprise me that attorneys do not approve of clients' waiving their right to incur large legal fees. But if this has shaken your confidence in the management of the home you had in mind, keep looking.
FYI - I’m not looking to sue anyone nor was there any indication (visible) that this business would put me into that situation. My desire is to keep ALL my constitutional rights so as to be prepared for the unexpected or the unknown. When it comes to putting Mom into someone else’s care, I want to know their track record - this is part of references and referrals we do for our loved ones, right? - and arbitration (Which has its place, no doubt) masks that for the staff, management, administrators and the business. This removes transparency from a vitally personal service and removes rights that are specifically there for protection - I just don’t want any attorney leveraging things, and forcing forfeiture of my rights before there is any problem of any sort.