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Understanding Mediation & Arbitration

By Heather Brown
October 14, 2016

Assisted living facilities offer a magnitude of services to their residents on a daily basis. Residents rely on you to provide quality care and maintain their quality of life with activities and assistance with daily living. Along with their care, you undertake a great risk – the possibility of a lawsuit. Lawsuits are unpredictable. They happen when you least expect and are often filed by disgruntled family members you barely know. Litigation is a daunting topic. Facility owners and administrators understand the financial and reputation repercussions of a lawsuit – but they don’t know what policies to put into practice (outside of insurance) to protect themselves and their facility.

The Solution

Mediation and arbitration agreements are a common alternative dispute resolution for assisted living facilities to implement to protect them in the event of a lawsuit. They each hold their own unique advantages and disadvantages.

Why

Communication is the foundation of solid and meaningful relationships. Upset family members often seek out counsel because they don’t feel like the facility cares about their loved one or their feelings. Mediation and arbitration promote communication as they key to understanding the other’s side, story, and feelings. This communication gives you both a chance to talk face-to-face and get a 360-degree view of the situation.

Mediation

Mediation is a non-binding process where both parties meet with their legal counsel and a third-party mediator. The mediator is an impartial individual that both parties agree upon. Their role is to listen and guide both parties to better understand the other side and communicate their own concerns. After listening to both sides the mediator presents a resolution to the matter – typically a settlement.

Both parties get the opportunity to review the suggested resolution with their legal counsel and choose to accept or deny it. The decision of the mediator is non-binding. If both parties are happy with the resolution proposed, they simply sign a contract agreeing to the terms and conditions. If the parties disagree with the proposal, the proposal is null and void and they can elect to move to arbitration or a trial.

Arbitration

Arbitration is a binding process similar to but more formal than mediation. Both parties meet with an agreed upon third-party representative. The arbitrator acts as a judge and jury combined. They listen to both parties’ stories, evidence, and review documentation to get an understanding of the situation. Afterward, they decide who wins and what that resolution or settlement is. Since arbitration is binding, the arbitrator’s decision is final. Parties cannot move from arbitration to the courtroom to have the decision over-turned.

Benefits

Both processes offer benefits to assisted living facilities and resident’s families.

  • Increase communication. Both promote communication between families and administrators or owners. Sometimes family members just need to feel like you took the time to listen to their concerns and worries.
  • Little impact on public reputation. Mediation and arbitration meetings are confidential, unlike trials. This decreases the opportunity for local media to broadcast the story on your local news.
  • Require less time to settle. Attorneys have busy and overloaded schedules causing trials to be postponed for more than a year in some cases. The trial process can require weeks of being in a courtroom instead of a few days in mediation or arbitration.
  • Less stress for all parties. The 3 previous benefits lead to less stress for all involved.

Mediation and arbitration laws vary by state. Check with your legal counsel to gain a better understanding of your possibilities. If you still have questions about mediation or arbitration, contact our team today at 800-673-2558.

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