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Posts Tagged ‘arbitration’

U.S. Supreme Court Upholds Mandatory Arbitration Clause in Nursing Home Dispute

Nicole Wilmet, July 5th, 2017

In May, the U.S. Supreme Court upheld a binding arbitration clause when it heard the case of Kindred Nursing Centers Limited Partnership v. Clark. In Kindred, Beverly Wellner and Janis Clark, the wife and daughter of Joe Wellner and Olive Clark, each held power of attorney for their respective family members. When Joe and Olive moved into Kindred Nursing Centers L.P., Beverley and Janis completed all the necessary power of attorney paperwork on behalf of their family members. Included in this paperwork was a binding arbitration agreement whereby Beverly and Janis agreed, on their family member’s behalf, that any disputes arising out of their family member’s stay at the facility would be resolved through binding arbitration.

After Joe and Olive passed away, Beverley and Janis brought negligence suits against Kindred Nursing Centers L.P. alleging that Kindred’s substandard care caused their family member’s deaths. Kindred then moved to dismiss these cases and claimed that the binding arbitration agreements signed by Beverly and Janis prohibited these cases from being heard in court. Both the Kentucky trial court and appellate courts dismissed Kindred’s claims and found that Beverly and Janis could try their case in court. Following the appellate court’s decision, Kindred then appealed to the Kentucky Supreme Court who affirmed the lower courts’ decisions and once again found that the families’ claims could be tried in court. As the Kentucky Supreme Court explained, the Kentucky Constitution protects an individual’s right to a jury trial. 478 S.W. 3d 306, 328-329 (2015). As such, the court found that the nursing home’s power of attorney agreement could not permit an individual with power of attorney to waive a jury trial and enter into a binding arbitration agreement without specifically saying so. Id. at 329. Following the court’s decision, Kindred then appealed to the U.S. Supreme Court.

On May 15th, in a 7-1 decision, the Supreme Court determined that the lower courts in Kentucky violated the Federal Arbitration Act (“FAA”) when they failed to give effect to the nursing home’s binding arbitration clause. As the court explained, under the FAA, courts are required to give arbitration agreements the same weight as all other contracts. (pg. 7) By failing to uphold the Kentucky nursing home’s arbitration clause, the Court found that the Kentucky courts failed to give the arbitration clause the same weight as other contracts. (pg. 8) As a result, the Court held that the nursing home’s clause was valid and enforceable.

“Uniform Family Law Arbitration Act” Update

Susan M. Yates, October 17th, 2016

The Uniform Family Law Arbitration Act has been finalized by the Uniform Law Commission and the full version with commentary is now available. You can find the final version of the act and other information on it here.

If you want to learn more about the act, the American Bar Association Family Law Litigation Committee is sponsoring a telephonic “roundtable” about it on November 4, at 12:00 pm – 1:00 pm Eastern. The roundtable is free and open to anyone, including non-ABA members, but you have to register for it using the following link: https://form.jotform.com/62504543364150.

The speakers for the roundtable have all been deeply involved in the creation of the model act. They include Barbara A. Atwood, Chair of the Family Law Arbitration Drafting Committee, Uniform Law Commission; Kaitlin A. Dohse, Legislative Counsel, Uniform Law Commission; and Linda H. Elrod, Reporter for the Family Law Arbitration Drafting Committee, Uniform Law Commission.

The Uniform Law Commission describes the need for the act and its intended results as follows: “States’ laws vary when it comes to arbitrating family law matters such as spousal support, division of property, child custody, and child support. The Uniform Family Law Arbitration Act standardizes the arbitration of family law. It is based in part on the Revised Uniform Arbitration Act, though it departs from the RUAA in areas in which family law arbitration differs from commercial arbitration, such as: standards for arbitration of child custody and child support; arbitrator qualifications and powers; protections for victims of domestic violence. This Act is intended to create a comprehensive family law arbitration system for the states.”

Turning Arbitration into a Political Football

Susan M. Yates, November 6th, 2015

Did you read the three articles on arbitration The New York Times published on October 31, November 1 and November 2? They tell a series of horror stories about arbitrations in employment, consumer and religious settings. I was sorely disappointed by them because they continued the trend to politicize arbitration.

This trend toward treating arbitration as political football didn’t just start last week in the Times. For some time now, one side has painted arbitration as bad for consumers because it limits class actions. They contend that class actions tackle the small issues that no individual would litigate. They say they help keep big corporations honest. Another side has said arbitration is good for consumers because it is less expensive and more accessible than litigation. They contend that class actions are bad for consumers because when class action litigation settles, the consumers may receive small gift certificates while the lawyers get big legal fees. See, for example, this article by the US Chamber of Commerce Institute for Legal Reform in response to the Times articles.

Here’s the thing: arbitration is not the problem. (more…)

Family Law Arbitration Act

Susan M. Yates, March 24th, 2015

People who have been involved with family law are likely to have encountered mediation, especially in child-related issues. But what about arbitration?

The Uniform Law Commission is in the midst of drafting a Family Law Arbitration Act designed to provide a structure for arbitration of family law matters. The draft act provides many of the typical characteristics of arbitration that distinguish it from litigation. For example, parties will enter arbitration through an agreement to arbitrate; parties select and hire their arbitrator; arbitration proceedings and awards can be confidential; and arbitration awards are final, with very limited causes for appeal to a court. Family law arbitration differs from commercial arbitration in some key respects, such as greater opportunities for judicial review of awards determining child custody and support.

Family arbitration is quite dissimilar from family mediation. Most importantly, the arbitrator makes a decision that (more…)

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