Yes, but you can beat your head against a wall too. Yesterday, I had a conversation with a defense attorney on one of our cases. We filed a lawsuit against a nursing home for dropping my client’s mother and fracturing her hip. As a result, she had to have surgery, and she then developed an infection and died. It’s an awful situation.
Unfortunately, she signed an arbitration agreement when she was admitted to the nursing home. She probably didn’t know what an arbitration provision was or that she even signed one, but nevertheless, it’s there. So, the Defense attorney filed a Motion to Compel Arbitration in the case, and he called me to ask if I was going to fight it.
Now, I could fight it. I could argue that this lawsuit was not the subject of what was contemplated by the agreement. I could argue that this matter does not involve interstate commerce (business between the states). I could argue her mental capacity. I could argue a whole host of things, but where would it get me and my clients? Even if the trial judge finds in our favor, the Defendant will mandamus the ruling to the Supreme Court of Alabama (appeal the decision), and not only is it likely that the Supreme Court of Alabama will side with the nursing home, but it will take months, if not a year, before we get the decision. And then, we will most likely be in arbitration so what will we have won? Nothing. The loss of a year when the case could be close to resolution.
This is only one of the problems with arbitration. Others? No ordinary citizen check on institutions. Total secrecy. A potentially biased arbitrator who wants more business from industry. The whole arbitration system is fraught with problems.
But, this is the system the Federal government has told us we should use. Why do I say the Federal government? Alabama statutes prevent arbitration:
The following obligations cannot be specifically enforced:
(1) An obligation to render personal service;
(2) An obligation to employ another in personal service;
(3) An agreement to submit a controversy to arbitration;
(4) An agreement to perform an act which the party has not power lawfully to perform when required to do so;
(5) An agreement to procure the act or consent of the wife of the contracting party or of any other third persons; or
(6) An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable.
But, the Federal Arbitration Act overrides the state law if the dispute involves "interstate commerce". In a nursing home setting, they argue that Medicare patients receive federal funding which is interstate commerce.
For more information on arbitration, visit the Center for Justice & Democracy. Also, go to HBO and watch the movie "Hot Coffee", and it will illustrate the lengths corporations will go to fight for arbitration (see the trailer below). Finally, write your legislators that you do not want arbitration any longer.
