Why haven't arbitration clauses been struck down as wholly a violation of due process and thus the 4th, 5th and 6th amendments?

@tedyc03: Your right to due process doesn't govern your interactions with other citizens or organizations. Due process, like free speech, is a limit on the government only.

@ManiacDan: The 7th amendment guarantees the right of a jury trial to any person with a dispute exceeding $20.

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

It doesn't limit this right to suits against the government...

@tedyc03: It's a civil matter, not a criminal proceeding.

While arbitration clauses may be bad for individual consumers, businesses use them all the timed in contracts with other businesses. Between two business, arbitration eliminates, to some extent the delay and costs associated with a trial. The reason it doesn't work for consumers, is that the arbitration firsm are fimly in the pocket of the business. In the case of two corporations, an equitable decision is more likely.

@tedyc03: Because you can waive that right when you agree to arbitration.

@tedyc03: Like mythago stated, you can waive these rights when you enter into contract. Similarly, you can 'sell' your right to sue a company/individual when you accept a 'settlement' payment.

Capital Senior Living tried to force the case to arbitration, citing the arbitration clause in the contract for care.

Why this insistence on arbitration?

Arbitration bars consumers from having disputes heard in court, forcing them instead into private mediation that can be held in different states, forcing them to travel hundreds of miles and pay thousands of dollars in costs. Private arbitrators often enjoy cozy relationships with the very companies they mediate disputes for, particularly in the credit card and financial industry.

A 2007 Public Citizen report studying credit card arbitration cases in California found that the National Arbitration Forum (NAF), a premier player in the financial services arbitration realm, ruled against consumers in 95 percent of cases brought before it.

So sad :(

@Blueskylaw: Either you answered your own question with this comment, or you misunderstood the post.

Yay for the judge!

I must admit that my firm represents business clients who use arbitration clauses and then take people to arbitration under them. We have prevailed in every one.

The number one reason we prevail? The other side doesn't take it seriously. They don't prepare, they don't hire lawyers, they think it's informal. When in reality we've spent about as much time as we would preparing for a litigation in court, have the evidence and trial folders, bring witnesses, subpoena documents, etc.

Sure, the arbitration company has an incentive to help us out, since we bring them repeat business, but based on the arbitrations I've been in on and the arbitrators I've dealt with, we wouldn't win if we weren't prepared or had no merit.

Just a little devil's advocate here. I'm not saying I like arbitration, but as long as it exists, consumers need to take it seriously.

By the way, whoever wins the arbitration award needs it confirmed by a court to go after property (at least in CA) and if you think the arbitration was unfair and have proof, you can dispute it in the confirmation hearing. So the award of arbitrator isn't the end all be all.

@tedyc03:

The 7th amendment doesn't guarantee the right to a jury trial, it preserves the right. The Supreme Court has interpreted this to mean that if you would have had a trial by jury in 1791 (when the amendment was passed) you are entitled to a jury. Wrongful death probably fits into this category, but there's an important distinction between guaranteeing the right and preserving the right.

Ugh, revolting. There's a place round here called Willow Lake that has a lake on the property, right next to the dining hall. Open bodies of water, senile residents. Brilliant. Several have died.

@Cattivella: Then what, pray tell, is the difference between arbitration and court? Sounds like the same amoung of work, just different people doing the judging.

Wow. Having my father in a nursing home makes reading stories like this even more repugnant than it would be without the personal connection... but we were careful to select a nursing home that has special experience with Alzheimer's patients, and the precautions they take seem reasonable and proper. In the Alzheimer's unit, all of the doors in and out have a keypad controlling an electronic lock. All of the fire doors have standard panic hardware, but if you open one without first keying the appropriate door code, it sets of an alarm that warns the attendants that someone's wandering off. Even if they do walk outside, the fire doors all open to a large fenced area so residents could get well away from the building in the even of a fire, but wouldn't be able to wander into the road or off the property unless someone opened one of the padlocked gates.

If you have no experience with physically-healthy mentally-absent Alzheimers patients, this probably sounds like a minimum-security prison... but after a few scares with our grandmother wandering off in her housecoat years ago, and Dad walking off down a rural highway swearing when we found him he was "going to the bank" it just makes sense. I hope the idiots running that nursing home lose their shirts along with their license.

@Cattivella: Um... your "by the way" about a judge needing to confirm an arbitration award is a little misleading, don't you think? It's almost impossible to overrule an arbitration award, even if you think it's "unfair." The only way to overturn most arbitration awards is evidence that the arbitrator himself was biased or incompetent - just getting the law wrong doesn't cut it, and factual decisions are granted absolute deference.

And the benefit of arbitration over court is basically that you can just hire an arbitrator and get it done whenever you want, as opposed to waiting up to a year for a judge to clear his calender. And it's easier to introduce evidence b/c of various technical legal reasons.

@happysquid: I know it's unintentional, but seeing that comment coupled with your avatar and username does things to my brain.

Even if it went to arbitration, and lost, you could still sue the nursing home in court and also sue the arbitrator. Just need an attorney that knows how to do it correctly.

For more information on mandatory binding arbitration and how it can affect you, please visit my blog at www.arbitrationhorrorstories.com.

@tedyc03: Also, like in the criminal context, you can voluntarily waive your rights as long as your waiver is "knowing and voluntary."

How the hell does wrongful death get to bypass being tried in a court of law in any form? Anything involving death should be automatically signed up for a court date, fees waived, free cookies and hot chocolate for the bereaved.

@GearheadGeek:
You are correct about what it takes to protect people with dementia. A locked unit can be seen by some as imprisonment, but the alternative is a tragic ending.

@proptart: Huh? The 7th Amendment indeed guarantees the right to a jury trial. You can waive that right, though.

@jamar0303: Oh, there's a huge difference. For one thing, the arbitrators are chosen and hired by the people appearing in front of them. Hence Cattivella's comment about "repeat business" - her law firm would not hire an arbitrator twice if they got the idea that the arbitrator was not going to be friendly to them. The rules in arbitration are different, and your ability to challenge stupid, biased or just plain wrong interpretations of the law are severely limited.

That's why businesses like them so much. You hire your own judge and if he rules in your favor (that's why you're hiring him, duh) there's not much the other side can do.

If you really wonder whether there's a difference, businesses agree to arbitration in business-to-business contracts MUCH less often than in business-to-consumer contracts. Hmmmm.

@Phexerian: No. If you sign an arbitration clause, you are WAIVING your right to sue in court. Arbitration is instead of, not in addition to.

I can't believe how many people I know just sign these things figuring "oh, I can sue if I want anyway." No, you can't.

I used to work in an alzheimers/dementia facility. If it makes you feel better, person above with a family member in a nursing home, we would NEVER EVER EVER let a resident wander off. Everyone had a secure care band on that set off alarms, and if they did manage to get outside, we would be RUNNING.

Any place that would not notice a missing resident OVERNIGHT is obviously neglectful in other areas, rounds should be two hours...was nobody coming in to change/turn this person??

"The victim's son pointed out that the victim had never signed the contract, and more importantly, the court held, the victim clearly didn't have the mental capacity to enter a contract, so the arbitration clause was invalid."

Ehm. Doesn't that cut both ways? If the "victim" didn't have a binding contract with the nursing home, then legally the nursing home has no responsibility to care for them to begin with.

And yes, I put "victim" in quotes.

@ScottRose: "Doesn't that cut both ways? If the "victim" didn't have a binding contract with the nursing home, then legally the nursing home has no responsibility to care for them to begin with."

I'm sure CMS (the Medicare people) and state regultory agencies don't agree.