Keep Arbitration Alive: Why the Fairness in Nursing Home Arbitration Act Should Not Be Passed

Authors

Margaret Baumer, Benjamin N. Cardozo School of Law

Abstract

Like it or not, arbitration agreements are part of our lives. Most cell phone and credit card companies include arbitration agreements in their customer contracts. Furthermore, many consumer complaints regarding trades through the National Association of Securities Dealers (NASD) are resolved through arbitration. However, despite their pervasiveness, consumers generally remain ignorant of arbitration agreements until a dispute arises, whereupon they discover that they must submit to arbitration proceedings, rather than sue sellers. Often, arbitration carries with it the added disappointment of high fees and perceived arbitrator bias in favor of the business entity. The same is true of a nursing home resident who signs an admissions contract containing a binding pre-dispute arbitration clause. The issue examined in this Note is whether the use of such agreements within the nursing home context is appropriate, necessary, and sustainable on fairness grounds. This Note will argue that such agreements are necessary and appropriate, and can be made fair and sustainable when certain provisions are added to arbitration agreements that provide more consumer control and bargaining power, and thereby provide a more level playing field.

Disciplines

Contracts | Dispute Resolution and Arbitration | Elder Law | Housing Law | Law

Recommended Citation

Margaret Baumer, Keep Arbitration Alive: Why the Fairness in Nursing Home Arbitration Act Should Not Be Passed, 12 Cardozo J. Conflict Resol. 155 (2010).
Available at: https://larc.cardozo.yu.edu/cjcr/vol12/iss1/9