BACK IN MY DAY, WE HAD RIGHTS: THE MED-ARB
SOLUTION TO MANDATORY ARBITRATION CLAUSES
IN INDIANA NURSING HOME ADMISSIONS CONTRACTS

MARINA CHERICE ALLEN*

INTRODUCTION

“There are many pleasant fictions of the law in constant operation, but
there is not one so pleasant or practically humorous as that which
supposes every man to be of equal value in its impartial eye, and the
benefits of all laws to be equally attainable by all men, without the
smallest reference to the furniture of their pockets.”

— Charles Dickens, The Life and Adventures of Nicholas Nickleby

After 60 years of service to the Catholic Church, Sister Irene Morissette, an
87-year-old nun suffering from dementia, admitted herself into an Alabama-based
assisted-living facility to receive help completing her day-to-day tasks and
activities.1 She typically locked her door in the evenings because she did not want
anyone entering her living quarters while she slept.2 Unfortunately, though, this
did not stop her assailant from accessing her bedroom, pinning her five-foot-two
body against her bed by her shoulders, and raping her.3 Morisette suffered
multiple abrasions during the attack; however, she did not call for help afterward
because she feared that her assailant would be the one to respond to her call.4

After police failed to identify the attacker, Morissette’s sister filed a lawsuit
against the nursing home for failing to maintain a safe living environment for its
residents.5 

Despite Morisette having suffered a traumatizing battery, the court quickly
stayed her sister’s lawsuit.6 Unbeknownst to her at the time of her admission,
Morissette signed an admissions contract containing a pre-dispute arbitration
clause.7 Specifically, the arbitration clause contractually bound Morissette to

* J.D. Candidate, 2020, and Health Law Certificate, 2020, Indiana University Robert H.

McKinney School of Law; B.A., Indiana University Bloomington, 2017. I would like to thank my

family and my husband for their unwavering support.

1. Levin & Perconti, $275 Billion Nursing Home Industry Prevents Elderly Nun from Suing

for Rape, LEVIN & PERCONTI ATTORNEYS AT LAW: ILL. NURSING HOM E ABUSE BLOG (Nov. 17,

2017), https://blog.levinperconti.com/275-billion-nursing-home-industry-prevents-elderly-nun-

suing-rape/ [https://perma.cc/3NFV-T28H].

2. Haley S. Edwards, An 87-Year-Old Nun Said She Was Raped in Her Nursing Home.

Here’s Why She Couldn’t Sue, TIME (Nov. 16, 2017), http://time.com/5027063/87-year-old-nun-

said-she-was-raped-in-her-nursing-home/ [https://perma.cc/9NPX-UD9R].

3. Id.

4. Id.

5. Levin & Perconti, supra note 1.

6. Id.

7. Edwards, supra note 2.



662 INDIANA LAW REVIEW [Vol. 53:661

settle all disputes relating to her residency through arbitration.8 By signing the
agreement, Morissette waived her Seventh Amendment rights and barred her own
access to relief through the courts.9 Though terribly frustrated, Morissette and her
family proceeded into the arbitrative process and asked for $5 million in damages,
all of which Morissette planned to donate to the Catholic Church.10 Nevertheless,
the nursing home’s hand-picked arbitrator found that the nursing home was not
liable for Morissette’s injuries and did not award Morissette any damages.11 In
fact, Morissette lost money by bringing her case, as the nursing home sent her a
$3,000 invoice to cover all of the arbitration costs.12

Long-term care facilities play a vital part in caring for society’s aging
generation.13 In 2014 alone, nearly 67,000 long-term care providers served about
nine million people nationally.14 Additionally, Indiana housed 39,000 long-term
care patients in 2016, making it home to one of the largest nursing home resident
populations in the country.15 Therefore, as our elderly population dramatically
expands in the coming years,16 it is highly likely that access to long-term care
services will grow higher in demand.17 However, accompanying the long-
termcare industry’s growing presence is its preference for keeping disputes out
of the traditional, adversarial system.18 Sister Morissette’s story is an
unfortunately common depiction of a problem affecting elderly Americans in
long-term care facilities across the country, as many nursing homes now use
mandatory alternative dispute resolution to resolve conflicts.19 Some elder law

8. Levin & Perconti, supra note 1.

9. Id.

10. Id.

11. Id.

12. Id.

13. See CTRS. FOR DISEASE CONTROL & PREVENTION, U.S. DEP’T OF HEALTH & HUMAN

SERVS., PUB. NO. 2016-1422, LONG-TERM CARE PROVIDERS AND SERVICES USERS IN THE UNITED

STATES: DATA FROM THE NATIONAL STUDY OF LONG-TERM CARE PROVIDERS, 2013-2014 (2016).

14. Id. With this number projected to rise to 27 million by 2050, the need for such care will

only increase.

15. Total Number of Residents in Certified Nursing Facilities, KAISER FAM. FOUND. (2016),

h ttps://ww w .kff.org/other/state-indicator/number-of-nursing-facility-residents/?cu rren t

Timeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D

[https://perma.cc/T8W4-SBML].

16. CTRS. FOR DISEASE CONTROL & PREVENTION, supra note 13. The number of Americans

over age sixty-five will likely double from 40.2 million in 2010 to 88.5 million by 2050. Statistics

further demonstrate that, among people who reach the age of sixty-five, over two-thirds of them

will require long-term care services at some point in their life.

17. James R. Knickman & Emily K. Snell, The 2030 Problem: Caring for Aging Baby

Boomers, 37 HEALTH SERVS. RES. 849, 850-51 (2002).

18. See Levin & Perconti, supra note 1.

19. See Levin & Perconti, supra note 1. For example, experts estimate that nearly 1 million

nursing home residents to date have signed an arbitration agreement during their facility admissions

process.



2020] BACK IN MY DAY, WE HAD RIGHTS 663

advocates even report that as many as 90 percent of large nursing-home chains
in the United States now include some type of arbitration clause in their
admission agreements.20 

Although various state courts have sought to render mandatory arbitration
clauses unenforceable on state law grounds,21 the Supreme Court put an end to
such efforts with its decision in Kindred Nursing Centers Ltd. Partnership v.
Clark.2 2 In Kindred, the Court reviewed Kentucky’s “clear-statement rule,” a
statute requiring that patient powers of attorney must explicitly authorize their
agents to enter into nursing home arbitration agreements for such agreements to
be enforceable.23 Ultimately, the Court held that the statute violated the Federal
Arbitration Act (the “FAA”), a law meant to enforce arbitration agreements
between parties at both the state and federal level.24 Though Kindred was an issue
of first impression for the Court, the Supreme Court’s long track record of
supporting the FAA’s preemptive powers made the Kindred decision largely
predictable.25 However, the Supreme Court is not the only court to support the
enforcement of arbitration; Indiana state courts26 and the Seventh Circuit2 7

regularly do so as well. Even governmental agencies follow the pro-arbitration
pattern, as many of their attempts to ban mandatory arbitration are usually
withdrawn and replaced before even going into effect.28 

But despite its overwhelming support in both state and federal judiciaries,
long-term care consumers continue to brand the process as inherently unfair.29

20. Edwards, supra note 2.

21. Lou Adolfsen, The Supreme Court and President Trump Agree – Nursing Homes

Plaintiffs May Be Required to Arbitrate, MELITO & ADOLFSEN P.C. (June 19, 2017),

https://www.melitoadolfsen.com/blog/2017/06/nursing-home-plaintiffs-may-be-required-to-

arbitrate-first-the-supreme-courts-say-so-and-so-does-pre.shtml [https://perma.cc/L3DJ-G2P2].

22. Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1429 (2017).

23. Id.

24. 9 U.S.C. § 2 (2019).

25. See, e.g., Preston v. Ferrer, 552 U.S. 346, 359 (2008); Doctor’s Assocs., Inc. v. Casarotto,

517 U.S. 681 (1996); Perry v. Thomas, 482 U.S. 483, 489-91 (1987); Southland Corp. v. Keating,

465 U.S. 1, 17 (1984).

26. See Theising v. ISP.com, LLC, 805 N.E.2d 778 (Ind. 2004); Safety Nat’l Cas. Co. v.

Cinergy Corp., 829 N.E.2d 986, 1000 (Ind. Ct. App. 2005); Nw. Mut. Life Ins. Co. v. Stinnett, 698

N.E.2d 339, 343 (Ind. Ct. App. 1998).

27. See IBEW, Local 21 v. Ill. Bell Tel. Co., 491 F.3d 685, 691 (7th Cir. 2007); James v.

McDonald’s Corp., 417 F.3d 672, 681 (7th Cir. 2005); Koveleskie v. SBC Capital Mkts., Inc., 167

F.3d 361, 366 (7th Cir. 1999). 

28. See Medicare and Medicaid Programs; Revision of Requirements for Long-Term Care

Facilities: Arbitration Agreements, 82 Fed. Reg. 26649 (proposed June 8, 2017) (to be codified at

42 C.F.R. pt. 483). 

29. Prohibit Pre-Dispute Arbitration Agreements in Long-Term Care Facility Admission

Contracts, NAT’L CONSUMER VOICE FOR QUALITY LONG-TERM CARE (last visited Mar. 28, 2020)

h t t p s :/ / t h e c o n s u m e r v o ic e . o r g / u p l o a d s / f ile s / is s u e s / C V Ar b it r a t io n Is s u e B r ie f . p d f

[https://perma.cc/7X6T-3GJN].



664 INDIANA LAW REVIEW [Vol. 53:661

Specifically, critics claim that mandatory arbitration places consumers at a great
disadvantage, arguing that arbitration clauses are commonly buried within the
fine print of the hefty stack of paperwork a patient completes during the
admissions process.3 0 Critics also complain that arbitration strips consumers of
both their constitutional right to a jury trial and the benefits a court of law
provides.31 Other complaints, such as cost, award amount, biased arbitrators, and
lack of ability to challenge the decision, are also inherent in the nursing home
arbitration debate.32 Therefore, if these grievances are so common within the
long-term care industry, why have they remained unsolved? Perhaps a realistic
solution to these ethical concerns is one that operates outside the traditional
canons of contract law. Instead, the answer may lie in redefining the law’s
definition of procedural justice to fit what long-term care consumers think it
means. 

Though mandatory arbitration is lawful in Indiana nursing home admissions
contracts, it is far from just. Elderly residents—many of which have cognitive
disabilities—are expected to read, comprehend, and assent to partialized
agreements under highly emotional and stressful circumstances.33 Consequently,
a legislative change would help ensure that elderly Hoosiers of all awareness
levels would be placed on the same footing as the nursing facility early in the
dispute resolution process. Therefore, this Note argues that the Indiana General
Assembly should amend Title 34, Article 57 of the Indiana Code to include a
Long-Term Care Admissions Arbitration chapter that requires Indiana nursing
home admission contracts containing arbitration clauses to include language
obligating all parties to first participate in mediation before arbitration. Part I
explains the historical background of arbitration, its dense support in both the
Indiana and federal court systems, and how it operates within the scope of long-
term care facility admissions contracts. Part II addresses both the concerns
patients commonly raise regarding mandatory arbitration and the ways the courts
respond to those concerns. Part III discusses the Mediation-Arbitration model in
detail, focusing on its mechanics and benefits; how it fits within the FAA; other
industries’ success in using both it and similar models; and how Indiana can
merge such a model into the Hoosier state’s long-term care industry.

I. NURSING HOME ARBITRATION 

A. What Exactly Is Arbitration?

Arbitration is an out-of-court form of dispute resolution between parties to

30. Id.

31. Id.

32. Id.

33. Erica F. Wood, Should CMS Prohibit Arbitration in Nursing Home Admission

Contracts?, A.B.A. (July 29, 2019) https://www.americanbar.org/groups/law_aging/publications/

bifocal/vol_36/issue_6_august2015/cms_binding_arbitration_comments/ [https://perma.cc/33QL-

SVKF].



2020] BACK IN MY DAY, WE HAD RIGHTS 665

a contract.34 It is the most traditional form of alternative dispute resolution and is
typically binding.35 Like many other alternative dispute resolution models,
arbitration is premised in consent; parties only resolve disputes using arbitration
if both parties agree to use it.36 Such an agreement typically takes the form of a
contract containing some type of pre-dispute clause.37 At first glimpse, arbitration
appears similar to the adversarial process because it, too, involves parties making
opening statements and presenting evidence to a neutral third party.38 However,
despite these similarities, the arbitration process differs from a classic trial in
numerous ways.

First, arbitration is unique in that its parties generally have complete control
in choosing their arbitrator.39 The arbitrator, an impartial third party, has a role
similar to that of a judge.40 In Indiana, both parties to a controversy must mutually
choose an arbitrator.41 Further, the arbitrator has a duty to “faithfully and fairly:
(1) hear and examine the controversy matters; and (2) make a just award
according to the best of the arbitrator’s understanding.”4 2 Though the statute
attempts to prevent arbitrator partiality, it cannot completely guarantee an
unbiased proceeding. For example, parties may choose an arbitrator based on his
or her expertise in a particular field, which could potentially lead to an inherent
preference for the party who aligns most with the arbitrator’s professional
views.43 This is problematic, especially considering that parties have little
opportunity to challenge an arbitrator’s final and binding solution.44

Additionally, though an arbitrator has a quasi-judicial role in the process,
arbitration is typically less formal than traditional litigation.45 Though the process

34. What We Do, AM. ARBITRATION ASS’N, https://www.adr.org/Arbitration [https://perma.

cc/8D94-X9C4] (last visited Mar. 29, 2020) [hereinafter What We Do].

35. Arbitration Defined: What is Arbitration?, JAMS, https://www.jamsadr.com/arbitration-

defined/ [https://perma.cc/R42W-GP65] (last visited Mar. 29, 2020).

36. Aceris Law, LLC, Definition of Arbitration, INT’L ARBITRATION INFO. (Feb. 18, 2018),

h t t p s : / / w w w . i n t e r n a t i o n a l-a r b it r a t io n -a t t o r n e y . c o m / d e f i n i t i o n - o f - a r b i t r a t i o n /

[https://perma.cc/8WBA-QETY].

37. Id.

38. Arbitration, A.B.A. (Oct. 11, 2018), https://www.americanbar.org/groups/dispute_

resolution/resources/DisputeResolutionProcesses/arbitration/ [https://perma.cc/9A4M-5QMA]

[hereinafter Arbitration].

39. Staff2, How Are Arbitrators Chosen?, U. MO. SCH. L.: ARB. INFO. (Oct. 15, 2018),

h t t p :/ / la w . m is s o u r i. e d u / a r b it r a t io n in f o / 2 0 1 5 / 1 0 / 1 4 / h o w -a r e -a r b it r a t o r s -c h o s e n /

[https://perma.cc/84YS-DVZ3].

40. What We Do, supra note 34.

41. IND. CODE § 34-57-1-4 (2018).

42. IND. CODE § 34-57-1-8 (2018).

43. What is Arbitration?, CIARB, https://www.ciarb.org/disputes/dispute-appointment-

service/arbitration/ (last visited Mar. 27, 2020) [https://perma.cc/7UVX-QB6D] [hereinafter

CIARB].

44. Aceris Law LLC, supra note 36.

45. CIARB, supra note 43.



666 INDIANA LAW REVIEW [Vol. 53:661

commonly resembles a trial, complete with opening statements and presentations
of evidence,46 the rules of discovery may be vague or non-existent in an
arbitrative setting.47 For example, parties often create their own discovery rules,
such as placing a limit on the number of depositions and interrogatories each
party may serve.48 The rules of evidence are also up to interpretation in the
arbitrative process, as parties may offer “relevant and material evidence” to
support their arguments.49 Moreover, the arbitrator has the power “to determine
what evidence will be admitted, what evidence is relevant, and what evidence is
material to the case.”50 This may, and often does, involve “any evidence the
arbitrator decides is necessary to understand and decide the dispute.”51 On the
contrary, the arbitrator also has the authority to “exclude evidence that [he or she]
decides is cumulative or irrelevant.”52 Therefore, arbitration takes a much more
relaxed approach to its proceedings than that of a typical court.

Yet another difference between arbitration and trial is that arbitration moves
faster than standard litigation.53 Additionally, some also believe that arbitration
is more cost-effective than litigation.54 Between 2003 and 2007, the American
Arbitration Association reported that the median award amount for nearly 1,200
employment arbitrations was only $109,858 per case.55 In comparison, federal
employment discrimination cases between 1991 and 2000 awarded on average
around $890,000 per case.56 

In summation, arbitration’s flexibility, coupled with its forgiving procedural
process, makes it the ideal candidate for long-term care facilities who wish to

46. Arbitration, supra note 38.

47. Miriam Smolen, Associate General Counsel, Fannie Mae, Webcast Presentation of

Arbitration vs. Litigation: “Weighing the Pros and Cons of Each Form of Dispute Resolution” and

“Global Litigation Concerns: Location, Location, Location” 4 (2009) (transcript available at

h ttps://ww w .acc.com /e d u c a t io n / w e b c a s t s / u p lo a d / 1 2 -1 0 -0 9 -Webcast-tran script.pdf

[https://perma.cc/QPY4-J5XV]).

48. Id.

49. Consumer Arbitration Rules, AM. ARB. ASS’N 25 (Sept. 1, 2018), https://www.adr.

org/sites/default/files/Consumer_Rules_Web_0.pdf [https://perma.cc/WQ7G-U3P4].

50. Id.

51. Id.

52. Id.

53. Measuring the Costs of Delays in Dispute Resolution, AM. ARBITRATION ASS’N,

http://go.adr.org/impactsofdelay.html [https://perma.cc/F22L-DMAU] (last visited Mar. 29, 2020).

For example, an American Arbitration Association study found that United States District Court

cases undergoing arbitration, on average, take just over eleven months to reach settlement. This is

much shorter than the twenty-four months it takes litigation on average in United States District

Courts to move from filing to trial.

54. Mark D. Gough, The High Costs of an Inexpensive Forum: An Empirical Analysis of

Employment Discrimination Claims Heard in Arbitration and Civil Litigation, 35 BERKELEY J.

EMP. & LAB. L. 91, 99 (2015).

55. Id.

56. Id.



2020] BACK IN MY DAY, WE HAD RIGHTS 667

avoid the restraints of ordinary litigation. 

B. The Courts’ Support of Arbitration

Similar to long-term care facilities, modern-day courts also heavily support
the arbitrative process.57 Historians have traced arbitration’s existence all the way
back to the 1600s, Colonial America, and even George Washington’s own will.58

However, courts have not always approved of this popular pre-dispute model.59

For example, when arbitration first began to gain traction in the 1800s, courts
outright refused to engage in such “ouster of jurisdiction.”60 They felt doing so
interfered with their jurisdiction to decide disputes.61 Judges also feared that
allowing parties to arbitrate outside of court would impede on party rights to a
fair and equitable hearing.62 The Supreme Court’s holding in Home Insurance Co.
of New York v. Morse made such feelings explicitly clear, holding that
“agreements in advance to oust the courts of the jurisdiction conferred by law are
illegal and void.”63 

However, as the country progressed into the twentieth century, commercial
entities began losing trust in the United States legal system.64 Increased
industrialization led to a climbing number of labor and employment disputes
between employers and employees.65 This in turn increased the demand for quick,
efficient ways to resolve disagreements.66 Businessmen began to take matters into
their own hands through arbitration, a process viewed by many at the time as a
“sensible answer to the expense and delay of litigation.”67 However, because the
courts disfavored arbitration, businessmen knew that they would have trouble
convincing a judge to enforce their privately-made agreements to arbitrate.68 After
months of lobbying and convening with legal experts, the business community
found the legislation it was looking for with the passing of the 1920 New York
Arbitration Act.69 This act made pre-dispute agreements to arbitrate enforceable

57. Lauren Gaffney, The Circle of Assent: How “Agreement” Can Save Mandatory

Arbitration in Long-Term Care Contracts, 62 VAND. L. REV. 1017, 1023-24 (2009).

58. WILLIAM  J. BARRY, APPROPRIATE DISPUTE RESOLUTION 111 (Wolters Kluwer Law &

Business 2017).

59. James Oldham & Su Jin Kim, Arbitration in America: The Early History, 31 L. & HIST.

REV. 241, 241 (2013).

60. BARRY, supra note 58, at 111. 

61. Id.

62. Id.

63. Home Ins. Co. of N.Y. v. Morse, 87 U.S. 445, 451 (1874).

64. BARRY, supra note 58, at 112.

65. Id.

66. Id.

67. Id.

68. Id.

69. Id.



668 INDIANA LAW REVIEW [Vol. 53:661

when mutually agreed to by parties.70 Four years later, the United States Supreme
Court finally followed New York’s lead and abandoned its intense objections
against pre-dispute arbitration in Red Cross Line v. Atlantic Fruit Co.71 In Red
Cross Line, the Court upheld its first mandatory arbitration clause, finding
arbitration agreements in maritime contracts to be “valid, enforceable, and
irrevocable.”72 

After the Red Cross Line decision, arbitration buried its way even further into
federal law with Congress’s passing of the FAA in 1925.73 In creating the FAA,
New York’s arbitration movement yet again led the way, as its newly-created
arbitration act served as the model for the FAA proposed to Congress.74 By
enacting the FAA, Congress officially adopted a “national policy favoring
arbitration.”75 Specifically, the FAA’s purpose is to “require[] courts to enforce
privately negotiated agreements to arbitrate, like other contracts, in accordance
with their terms.”76 The FAA generally aims to make arbitration agreements
“valid, irrevocable, and enforceable, save upon grounds as exist at law or in
equity for the revocation of any contract.”77 Such grounds include generally
applicable contract defenses like fraud or unconscionability.78 Since the FAA’s
debut, the Supreme Court,79 Indiana state courts,80 and the Seventh Circuit81 all
have heavily supported arbitration clauses in many areas and industries. 

70. Id.

71. Wesley A. Sturges & Irving Olds Murphy, Some Confusing Matters Relating to

Arbitration Under the United States Arbitration Act, 17 L. & CONTEMP. PROBS. 580, 603 (1952).

72. Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 118 (1924) (internal quotations

omitted).

73. BARRY, supra note 58, at 112.

74. Michael H. LeRoy & Peter Feuille, Happily Never After: When Final and Binding

Arbitration Has No Fairy Tale Ending, 13 HARV. NEGOT. L. REV. 167, 173-74 (2008).

75. Southland Corp. v. Keating, 465 U.S. 1, 10 (1984).

76. Volt Info. Scis. v. Bd. of Trs., 489 U.S. 468, 478 (1989).

77. 9 U.S.C. § 2 (2019).

78. Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1426 (2017) (citing AT&T

Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)).

79. See, e.g., id. at 1421 (reviewing waiver of Sixth Amendment rights in nursing home

contracts); Volt Info. Scis., 489 U.S. at 491 (determining whether the FAA preempts state law

permitting courts to stay arbitration of an agreement between university and contractor); Perry v.

Thomas, 482 U.S. 483, 489-91 (1987) (reviewing California law that permitted employees to sue

for unpaid wages); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (holding that the

district court errored in refusing motion to compel arbitration between investor and securities

broker-dealer).

80. See, e.g., Theising v. ISP.com, 805 N.E.2d 778, 780 (Ind. 2004); Safety Nat’l Cas. Co.

v. Cinergy Corp., 829 N.E.2d 986, 1000 (Ind. Ct. App. 2005); Nw. Mut. Life Ins. Co. v. Stinnett,

698 N.E.2d 339, 343 (Ind. Ct. App. 1998).

81. See, e.g., IBEW, Local 21 v. Ill. Bell Tel. Co., 491 F.3d 685, 691 (7th Cir. 2007); James

v. McDonald’s Corp., 417 F.3d 672, 681 (7th Cir. 2005); Koveleskie v. SBC Capital Mkts., Inc.,

167 F.3d 361, 366 (7th Cir. 1999). 



2020] BACK IN MY DAY, WE HAD RIGHTS 669

Despite common misunderstanding, the FAA’s arms reach to commercial
contracts at both the state and federal levels unless the contract explicitly states
otherwise.82 Consequently, the FAA has the power to preempt any state rule that
facially or implicitly discriminates against arbitration.83 Courts generally view
arbitration as a settled, procedural choice that parties have agreed to in advance,
such as a special kind of forum-selection clause.84 Therefore, state statutes are
prohibited from carving out areas in which arbitration is thought to be
inappropriate or in need of special regulation.85

To conclude, arbitration has bloomed into a popular practice across the
United States. Despite its checkered history, arbitration has earned vast approval
from many levels of industry and continues to impact the ways in which parties
write contracts, judges decide cases, and legislators create law. 

C. Arbitration in Long-Term Care Facilities

As previously illustrated, the use of mandatory arbitration clauses has
increased greatly in a wide array of consumer contracts.86 One of the lesser-
known areas that uses the arbitrative process is tort law, as arbitration is
commonly used to compel settlements related to personal injury claims between
contracting parties.87 Like general personal injury claims, claims against long-
term care facilities are also settled by arbitration.88 In fact, experts estimate that
nearly 2.5 million Americans in nursing homes today are likely bound by an
arbitration agreement.89

The manner in which nursing homes bind patients to such arbitration
agreements is both a hurried and unexplained process.90 Residents usually enter
into this process unexpectedly, such as after they fall ill or become dependent due
to their age.91 Moreover, becoming a nursing home patient involves losing a

82. Terry L. Trantina, What Law Applies to an Agreement to Arbitrate?, DISP. RESOL. MAG.,

Fall 2015, at 29.

83. Kindred Nursing Ctrs. Ltd. P’ship, 137 S. Ct. at 1426.

84. See Schrek v. Alberto-Culver Co., 417 U.S. 506, 519 (1974).

85. Elizabeth G. Thornburg, Contracting with Tortfeasors: Mandatory Arbitration Clauses

and Personal Injury Claims, 67 L. & CONTEMP. PROBS. 253, 253 (2004).

86. Laura K. Bailey, The Demise of Arbitration Agreements in Long-Term Care Contracts,

75 MO. L. REV. 181 (2010).

87. Thornburg, supra note 85, at 254.

88. Bailey, supra note 86, at 181.

89. Ray Mullman, Nun Raped At Nursing Home Can’t Sue, S.C. NURSING HOME L. BLOG

(Dec. 12, 2017), https://scnursinghomelaw.com/category/arbitration-2/ [https://perma.cc/EZC4-

P5AS].

90. See Jana Pavlic, Reverse Pre-Empting the Federal Arbitration Act: Alleviating the

Arbitration Crisis in Nursing Homes, 22 J.L. & HEALTH 375, 389-90 (2009).

91. Stephen Pokiniewski, Jr. & Anapol Weiss, Arbitration Agreements in Nursing Home

Cases, THE LEGAL INTELLIGENCER (Apr. 6, 2018), https://www.law.com/thelegalintelligencer/

2018/04/06/arbitration-agreements-in-nursing-home-cases/ [https://perma.cc/25FZ-JHLX].



670 INDIANA LAW REVIEW [Vol. 53:661

certain amount of autonomy during admission.92 For instance, the selection of the
facility is often made under crisis circumstances.93 Additionally, geographic
considerations may severely limit facility options, as patients living in rural areas
may lack choice in comparison to those who live in the city.94 Despite the
patient’s non-involvement in the selection process, a choice in a long-term care
facility is usually one of finality.95

At the time of admission, patients are commonly asked to sign some sort of
admissions agreement.96 However, institutions frequently presume that patients
lack capacity to do so from the start.97 Consequently, they often rely on the
signature from a family member or other “responsible” party.98 Moreover, the
standard long-term care admissions process takes only three hours or less,99 so
patients have a limited amount of time to sift through all given admissions
documentation and paperwork. Therefore, patients often overlook the part of the
agreement that includes an arbitration clause.100 These clauses typically require
both parties to resolve any disputes arising from the patient’s care with a
designated dispute resolution entity.101 By signing the agreement, patients
relinquish their rights to sue in a court of law.102 However, most families are
unaware that these clauses exist.103 

Regardless of the ethical concerns such a practice poses, including arbitration
provisions in nursing home admissions contracts is lawful.104 In fact, binding
arbitration agreements in such contracts are becoming increasingly common.105

For example, experts estimate that around 50 percent to 60 percent of today’s

92. Deon C. Hayley et al., Ethical and Legal Issues in Nursing Home Care, 156 ARCH.

INTERN. MED. 249, 249 (1996).

93. Id. at 250. “Crisis circumstances” include caretaker illness, death, or rapid health

deterioration of a patient.

94. Id.

95. Id. Nearly one-third of new patients stay in nursing homes for more than one year.

Unfortunately, statistics suggest that these patients have a high likelihood of dying in these facilities

as well.

96. Pokiniewski, Jr. & Weiss, supra note 91.

97. Hayley et al., supra note 92, at 250.

98. Id.

99. Id.

100. Pokiniewski & Weiss, supra note 91.

101. Id.

102. Id.

103. Id.

104. See, e.g., Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1429 (2017);

Marmot Health Care Ctr., Inc. v. Brown, 565 U.S. 530, 532 (2012); Tender Loving Care Mgmt.,

Inc. v. Sherls, 14 N.E.3d 67, 73 (Ind. Ct. App. 2014); Sanford v. Castleton Health Care Ctr., LLC,

813 N.E.2d 411, 417 (Ind. Ct. App. 2004).

105. Lisa Tripp, A Senior Moment: The Executive Branch Solution to the Problem of Binding

Arbitration Agreements in Nursing Home Admission Contracts, 31 CAMPBELL L. REV. 157, 161

(2009).



2020] BACK IN MY DAY, WE HAD RIGHTS 671

nursing home residents across the United States sign arbitration agreements.106

Most large-chain nursing homes in the United States, such as Integrated Health
Services, Beverly Industries, Kindred Healthcare, and Mariner, all include
arbitration clauses in their admissions agreements.107 Though size and readability
can vary, an enforceable arbitration clause in a nursing home admissions
agreement might closely resemble the following:

The Parties expressly agree that the Arbitrator shall have exclusive
authority to resolve any disputes related to the existence and/or
enforceability of this Resolution of Legal Disputes provision, including
but not limited to any claim that all or any part of this Resolution of
Legal Disputes provision is void or voidable.108

However, Kindred is not the first time the Supreme Court faced nursing home
arbitration and upheld its enforceability.109 In 2012, the Court held in Marmet
Health Care v. Brown that West Virginia’s practice of prohibiting pre-dispute
arbitration in wrongful death nursing home claims for public policy reasons
violated the FAA.110 Indiana state courts also repeatedly support the use of
mandatory arbitration clauses in nursing home admission contracts by holding
that parties are assumed to understand the terms of the agreements they assent
to.111

Furthermore, even governmental bodies fail to promulgate and enact rules
that adequately challenge nursing home arbitration.112 For example, government
agencies have rolled back attempts to ban nursing home arbitration.113 The
Centers for Medicare and Medicaid Services (“CMS”) issued the Reform of
Requirements in Long Term Care Facilities Final Rule in October 2016, which
banned pre-dispute binding arbitration agreements in long-term care facility

106. Lisa Schencker, An End to Mandatory Arbitration Agreements in Nursing Homes?,

MODERN HEALTHCARE (July 17, 2015), http://www.modernhealthcare.com/article/20150717/

NEWS/150719913 [https://perma.cc/AJ72-SQLT].

107. Ann E. Krasuski, Mandatory Arbitration Agreements Do Not Belong in Nursing Home

Contracts with Residents, 8 DEPAUL J. HEALTH CARE L. 263, 268 (2004).

108. Roth v. Evangelical Lutheran Good Samaritan Soc’y, 147 F. Supp. 3d 806, 809 (N.D.

Iowa 2015).

109. See Marmot Health Care Ctr., Inc., 565 U.S. at 532.

110. Id. 

111. See, e.g., Tender Loving Care Mgmt., Inc. v. Sherls, 14 N.E.3d 67, 73 (Ind. Ct. App.

2014) (holding that, by signing the admissions contract, the patient waived her right to a jury trial);

Sanford v. Castleton Health Care Ctr., LLC, 813 N.E.2d 411, 417 (Ind. Ct. App. 2004) (holding that

the nursing home’s admissions contract containing an arbitration clause was not unconscionable).

112. See Medicare and Medicaid Programs; Revision of Requirements for Long-Term Care

Facilities: Arbitration Agreements, 82 Fed. Reg. 26649 (proposed June 8, 2017) (to be codified at

42 C.F.R. pt. 483).

113. Id. (emphasizing that the Center for Medicare & Medicaid Services withdrew 81 Fed.

Reg. 68688, which banned nursing homes from using pre-dispute arbitration, two months before

its effective date).



672 INDIANA LAW REVIEW [Vol. 53:661

contracts.114 However, less than nine months after making the decision, the CMS
issued a proposed rule lifting this ban.115 This new rule restored long-term care
facilities’ freedom to include such provisions in their admissions contracts, so
long as the facilities remained transparent with patients about the arbitrative
process.116 Another example comes from Congress, which twice attempted to
limit mandatory arbitration through its proposed Fairness in Nursing Home
Arbitration Acts.117 However, unsurprisingly, both bills died in committee.118

In summary, the United States’ wide-spread preference for arbitration has
begun to reach parts of the healthcare sector, including the long-term care
industry. Administrative, legislative, and precedential history all illustrate
attempts to limit its existence in the nursing home arena, with most, if not all,
attempts proving fruitless.

II. FAIRNESS CONCERNS AND PARTY PERSPECTIVES

An admissions contract containing an arbitration clause is just one of many
forms patients receive, overlook, and sign when being admitted into a long-term
care facility.119 At the time of admission, nursing home residents are often
overwhelmed, arguably leading them to execute agreements at a time when they
are not able to comprehend the impact of the contract’s provisions.120

Consequently, patients and their families often oppose the enforcement of the
arbitration clauses and commonly rely on the following defenses to challenge
their enforceability.121 However, regardless of whether the patient or his or her

114. CMS Issues Proposed Revision Requirements for Long-Term Care Facilities’ Arbitration

Agreements, CMS.GOV: NEWSROOM (June 5, 2017), https://www.cms.gov/newsroom/fact-

sheets/cms-issues-proposed-revision-requirements-long-term-care-facilities-arbitration-agreements

[https://perma.cc/9SUC-LYRF].

115. Nancy Halstead & Kelly Hibbert, CMS Reverses Course in Pre-Dispute Arbitration

Agreement Ban, REED SMITH LLP: HEALTH INDUSTRY WASHINGTON WATCH (June 13, 2017),

h t t p s :/ / w w w . h e a lt h in d u s t r yw a s h in g t o n w a t c h . c o m / 2 0 1 7 / 0 6 / a r t i c l e s / r e g u la t o r y-

developments/medicare-medicaid-services-regulations/cms-reverses-course-in-pre-dispute-

arbitration-agreement-ban/ [https://perma.cc/CR8M-9YJQ].

116. Legal Alert: Centers for Medicare and Medicaid Services (CMS) Reverses Arbitration

Ban, WEINBERG WHEELER HUDGINS GUNN & DIAL (June 9, 2017), https://www.wwhgd.com/

newsroom-news-legal-alert-cms-reverses-arbitration-ban.html [https://perma.cc/Y43P-AGEK].

117. S. 512, 111th Cong. (2009); H.R. 6351, 112th Cong. (2012).

118. See S. 512, 111th Cong. (2009) (emphasizing the bill’s failure to pass in the 111th

Congress); H.R. 6351, 112th Cong. (2012) (emphasizing the bill’s failure to pass in the 112th

Congress).

119. Charles P. Sabatino, Nursing Home Admission Contracts: Undermining Rights the Old-

Fashioned Way, 24 CLEARINGHOUSE REV. 553 (1990). 

120. Kelly Bagby & Samantha Souza, Ending Unfair Arbitration: Fighting against the

Enforcement of Arbitration Agreements in Long-Term Care Contracts, 29 J. CONTEMP. HEALTH L.

& POL’Y 183, 186-87 (2013).

121. Reed R. Bates & Stephen W. Still, Jr., Arbitration in Nursing Home Cases: Trends,



2020] BACK IN MY DAY, WE HAD RIGHTS 673

power of attorney signs the agreement, the estate is still usually bound by the
contract’s terms – even if those terms require arbitration.122

A. Contract of Adhesion and Unconscionability

As the Indiana Court of Appeals highlighted in Progressive v. Indiana &
Michigan Electric Co., to be unconscionable, “[a] contract must be ‘such as no
sensible man but under delusion, duress or in distress would make, and such as
no honest and fair man would accept.’”123 Patients and their families often rely on
this argument when challenging an arbitration clause’s enforceability, claiming
that either the arbitration clause itself or the circumstances under which patients
signed the contract are inherently unfair.124 Time pressures also impair the ability
of families to seek and consider alternative nursing home locations.125 This forces
patients to either take or leave the care that they are being offered.126 Therefore,
because some families become so desperate to obtain an available bed, many feel
as though they are simply at the mercy of a long-term care facility and its
mandatory arbitration agreement.127 This leaves patients and families feeling that
their dire circumstances leave them with no meaningful choice.128 

Families further argue that the large disparity in bargaining power between
the nursing facility and the resident gives the nursing facility an unjust
advantage.129 This belief is well-supported, as data show that even the average
citizen who enters into an arbitration agreement often does not read or fully
understand the contract’s terms.130 Therefore, if general consumers lack

Issues, and a Glance Into the Future, 76 DEF. COUNS. J. 282 (2009). 

122. Brett Herbert, Be Careful with that Power of Attorney!: Arbitration Clauses and Nursing

Home Lawsuits, GORDON & REES: ESTATE CONFLICTS (June 12, 2017), https://estateconflicts.com/

be-careful-w ith -th at-pow er-of-attorn ey-arbitration-clauses-and-nursing-home-lawsuits/

[https://perma.cc/CD57-YN2D].

123. Progressive Constr. & Eng’g Co. v. Ind. & Mich. Elec. Co., 533 N.E.2d 1279, 1286 (Ind.

Ct. App. 1989) (citing Dan Purvis Drugs, Inc. v. Aetna Life Ins. Co, 412 N.E.2d 129, 131 (Ind. Ct.

App. 1980)).

124. Bagby & Souza, supra note 120, at 185 (“Decisions regarding admission into a nursing

facility are often ‘emotionally-charged, stress-laden event[s]’ that typically are made in the midst

of a crisis brought on by an abrupt increase in disability level, precipitous deterioration in health,

or the deterioration in health (or death) of a spouse or caregiver.”)

125. Id. at 187.

126. Krasuski, supra note 107, at 281.

127. Gaffney, supra note 57, at 1021.

128. Krasuski, supra note 107, at 273.

129. Bagby & Souza, supra note 120, at 187.

130. Paul F. Kirgis et al., “Whimsy Little Contracts” with Unexpected Consequences: An

Empirical Analysis of Consumer Understanding of Arbitration Agreements, 75 MD. L. REV. 1, 55-

56 (2015). When researchers presented a group of survey recipients with a sample credit card

consumer contract containing an arbitration clause, only 6 percent of all participants who signed

it reported that they both read and understood the agreement. Additionally, despite the contract’s



674 INDIANA LAW REVIEW [Vol. 53:661

awareness and understanding of arbitration agreements,131 the nation’s sickest and
weakest population undoubtedly do as well.132 A party’s familiarity with the
contract may also provide key advantages to winning either part or all of an
arbitration award.133 In the employment law context, research shows that an
employer has a higher chance of winning if it drafted the contract.134 Therefore,
because nursing homes generally write their arbitration agreements without
negotiating the terms with their residents, they likely have an advantage over their
residents in regard to contractual comprehension from the start.135

Nevertheless, though data appear to support this argument of
unconscionability, the law does not.136 In Indiana, the courts follow a strong
arbitration enforcement policy.137 Specifically, Indiana has made clear that
nursing home admission agreements containing arbitration clauses, absent some
contractual defense, are not “unconscionable ahdesion contract[s].”138 In fact,
Indiana courts will only recognize a contract as being unconscionable if “a great
disparity in bargaining power exists between the parties which leads the weaker
to sign a contract unwillingly or without being aware of the terms.”139 This creates
a potential loophole; however, courts presume that a person understood and
assented to the terms of the contract if he or she signed it.140 This is especially
problematic when the arbitration provision is particularly conspicuous, as it is
much more difficult in these cases to show that the patient truly did not
understand the terms he or she assented to.141

Additionally, Indiana courts have held that a contract is not unenforceable

language and the researchers telling them so, more than 90 percent of participants did not know the

contract contained an arbitration clause and did not believe that the clause barred them from

bringing their disputes in court. The majority of participants also were not convinced that, if the

parties did have to participate in arbitration, the arbitrator’s decision would be final.

131. Id.

132. Tripp, supra note 105, at 161.

133. Gough, supra note 54, at 98.

134. Id. at 97-98. A 2015 study found that employee complainants won only 21 percent of the

time in arbitration when the employer alone wrote the agreement and inserted it into the employee’s

handbook. In contrast, employee complainants won nearly 69 percent of the time in arbitration

when they had some opportunity to negotiate their contracts with their employer. These results

demonstrate the direct relationship that exists between a party’s level of awareness of contractual

terms and its likelihood of later winning in arbitration when those terms are at issue.

135. Gaffney, supra note 57, at 1025.

136. See Sanford v. Castleton Health Care Ctr., LLC, 813 N.E.2d 411, 417 (Ind. Ct. App.

2004); Nw. Mut. Life Ins. Co. v. Stinnett, 698 N.E.2d 339, 343 (Ind. Ct. App. 1998).

137. Nw. Mut. Life Ins. Co., 698 N.E.2d at 343.

138. Sanford, 813 N.E.2d at 417.

139. White River Conservancy Dist. v. Commonwealth Eng’rs, Inc., 575 N.E.2d 1011, 1017

(Ind. App. 1991).

140. See Buschman v. ADS Corp., 782 N.E.2d 423, 428 (Ind. Ct. App. 2003).

141. See Sanford, 813 N.E.2d at 417 (highlighting the court’s emphasis on the plain-view

placement and text size of the arbitration clause in the contract).



2020] BACK IN MY DAY, WE HAD RIGHTS 675

merely because one party enjoys advantages over another.142 Though the courts
generally refuse to lend themselves to the enforcement of a “bargain” in which
one party has unjustly taken advantage of the other,1 4 3 they also recognize that
parties are free to enter into contracts.144 As the courts have explicitly stated, “It
is not the policy of the law to restrict business dealings or to relieve a party of his
own mistakes of judgment.”145 Furthermore, just because a contract resembles a
standardized form contract drafted by a “superior party” does not mean that a
court will hold its provisions unenforceable.146 Courts presume that such contracts
represent the parties’ freely bargained agreements.147  

In conclusion, despite the belief that arbitration clauses in long-term care
facility contracts appear unconscionable, courts have continually relied upon the
basic tenets of contract law to uphold their enforceability. 

B. Capacity and Consent

As mentioned, many residents admitted into nursing homes have some type
of diminished capacity.148 While these illnesses are often somatic or
socioemotional in nature, many of these disorders have especially debilitating
characteristics that can impact a person’s ability to function.149 Moreover, the
nursing home population is predominately poor, elderly, and physically or
mentally disabled.150 In fact, nearly half of all chronic medical conditions
associated with nursing home admissions are mental disorders like dementia.151

Furthermore, 63 percent of nursing home residents have some type of cognitive
impairment, a condition that may affect their ability to participate in making their
own healthcare decisions.152 In light of these issues, families often claim that
patients are unable to partake in the admissions process153 and lack the ability to
understand what they are agreeing to.154 

Nursing home residents also may lack capacity due to their unique style of

142. Dan Purvis Drugs, Inc. v. Aetna Life Ins. Co., 412 N.E.2d 129, 131 (Ind. Ct. App. 1980)

(holding that a standardized contract, which, imposed and drafted by the party of superior

bargaining strength, is not per se unconscionable).

143. Weaver v. Am. Oil Co., 276 N.E.2d 144, 147 (Ind. 1971).

144. Grott v. Jim Barna Log Systems-Midwest, Inc., 794 N.E.2d 1098, 1102 (Ind. Ct. App.

2003) 

145. Stiefler v. McCullough, 174 N.E. 823, 826 (Ind. Ct. App. 1931).

146. Grott, 794 N.E.2d at 1102.

147. Id. at 1103.

148. Krasuski, supra note 107, at 276.

149. Gilberte Van Rensbergen & Tim Nawrot, Medical Conditions of Nursing Home

Admissions, 10 BMC GERIATRICS 1, 8 (2010).

150. Hayley et al., supra note 92, at 249.

151. Rensbergen & Nawrot, supra note 149, at 1.

152. Hayley et al., supra note 92, at 249.

153. Krasuski, supra note 107, at 276.

154. Id.



676 INDIANA LAW REVIEW [Vol. 53:661

cognitive decision-making.155 For example, older adults tend to exhibit more
“satisficing” tendencies than younger adults.156 One reason the elderly engage in
this heuristic form of decision-making is to decrease the amount of effort they
exert in accomplishing a task involving elaborate forms of cognitive
processing.157 This form of cognitive processing proves adaptive in situations
where the elderly may want to save energy on performing their daily activities,
such as picking between two items at the grocery store.158 However, the process
can serve as an extreme detriment for this population when they are forced to
instead measure more critical information, such as decisions involving their
healthcare or personal finances.159 Due to this characteristic, the elderly likely do
not have the cognitive ability to weigh the impact of signing life-altering
contracts, such as a nursing home admissions agreement.160

Unfortunately, for elderly people unaware of the consequences of an
arbitration clause, the standard to consent to one’s own healthcare in Indiana is
quite low.161 In Indiana, “competent adults [are given] the utmost liberty in
entering into contracts that, when entered into freely and voluntarily, will be
enforced by the courts.”162 In fact, unless the individual is incapable of doing so
under section 16-36-1-4 of the Indiana Code, the only thing a patient must show
in order to consent to his or her own healthcare is that the patient is an adult.163

In response, patients and their families may exercise two defenses in an attempt
to show that the patient lacked the capacity to consent when he or she assented
to healthcare treatment: Patients may either (a) present an opinion of an attending
physician, which states that the patient lacked capacity to make such a choice,164

or (b) attempt to show that the individual lacked mental capacity when he or she
entered into the contract to begin with.165

If neither of these defenses works and the patient’s capacity argument does

155. Stephanie M. Carpenter & Carolyn Yoon, Aging and Consumer Decision Making, 1235

ANN. N.Y. ACAD. SCI. 1, 2 (2011).

156. Id. Unlike younger adults who analyze potential options in order to make a maximum

satisfactory decision, older adults examine options just long enough to reach an adequately

satisfactory decision.

157. Id.

158. Id.

159. Id.

160. Id.

161. See IND. CODE § 16-36-1-3 (2019).

162. Zollman v. Geneva Leasing Assocs., Inc., 780 N.E.2d 387, 392 (Ind. Ct. App. 2002)

(citing Candelight Props., LLC v. MHC Operating Ltd. P’ship, 750 N.E.2d 1, 10 (Ind. Ct. App.

2001); Peoples Bank & Trust Co. v. Price, 714 N.E. 2d 712, 716 (Ind. Ct. App. 1999)).

163. See IND. CODE § 16-36-1-3(a)(1) (2019).

164. IND. CODE § 16-36-1-4(a) (2019).

165. Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App.

2005) (noting that the standard to determine contractual mental capacity “is whether the person was

able to understand in a reasonable manner the nature and effect of his act” on the date of the

agreement).



2020] BACK IN MY DAY, WE HAD RIGHTS 677

not pass muster, his or her family may try to argue that the arbitration provision
is unenforceable if the agreement was signed by a third party.166 For practical
reasons, it is common for a family member to sign the admissions contract as
power of attorney for a patient.167 Moreover, because this has become such an
everyday practice, the care facility often does not inquire into whether the patient
actually gave the family member permission to sign for him or her or not.168

Therefore, patients and their families attempt to challenge arbitration enforcement
on ineligible third-party grounds, arguing that the family member who signed the
contract lacked the authority to do so.169

Unfortunately, though, this argument also commonly falls short. Indiana
approves of certain individuals170 consenting to health care for a patient if (1) the
patient is “incapable of making a decision concerning the proposed health care”
and (2) the patient “has not appointed a health care representative pursuant to
Indiana Code section 16-36-1-7.”171 In fact, Indiana courts have even upheld
third-party consent power in scenarios where the third party is not even the
patient’s legal guardian or power of attorney at all.172 Therefore, if courts allow
these types of unofficial representatives to consent for a patient’s health care, it
comes as no surprise that they also allow and enforce a specifically-appointed
representative’s choice to do the same.173

In sum, an elderly individual’s diminished ability to consent does not prevent
courts from enforcing his or her signing of an arbitration agreement. And, even
if the patient does not sign an arbitration agreement himself, his power of
attorney’s signing of the agreement will likely be enforced, too.

C. Repeat-Player Effect

Patients and their families face concerns with nursing home repeat-player
advantages, or the expression of arbitrator bias toward a particular party who
regularly uses that arbitrator.174 Because nursing homes make more frequent

166. Krasuski, supra note 107, at 277.

167. Id. at 276.

168. Id.

169. Id. at 277.

170. See IND. CODE § 16-36-1-5(a) (2018).

171. Tender Loving Care Mgmt., Inc. v. Sherls, 14 N.E.3d 67, 73 (Ind. Ct. App. 2014).

172. See, e.g., id. at 74 (finding that a patient’s son had the authority to contract for the

patient’s health care services despite not being the patient’s legal representative or court-appointed

guardian).

173. See Sanford v. Castleton Health Care Ctr., LLC, 813 N.E.2d 411, 420 (Ind. Ct. App.

2004) (holding that the patient’s legal representative’s signing of an admissions contract bound her

to arbitration); Heritage Dev. Of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 888 (Ind.

Ct. App. 2002) (holding that a principal will be bound by a contract signed by an agent if the

principal expressly authorized the agent to enter into the contract on the principal’s behalf).

174. Elizabeth Rolph et al., Arbitration Agreements in Health Care: Myths and Reality, 60 L.

& CONTEMP. PROBS. 153, 156 (1997). 



678 INDIANA LAW REVIEW [Vol. 53:661

appearances in arbitration, as opposed to a first-time patient, nursing homes have
far more opportunity to develop relationships with the third-party neutrals they
use.175 Moreover, because particular arbitrators are selected by nursing homes
ahead of time in the admissions contract, the arbitrator often relies on the
institution for income and future business.176 Unsurprisingly, this could
incentivize the arbitrator to inadvertently resolve the dispute in the institution’s
favor.177 Families therefore often feel that nursing homes are unable to provide
neutral decision-makers in arbitration proceedings.178 Though scarce, data support
this fear, as research shows that companies who participate in arbitration more
often than those who do not have a higher likelihood of winning some type of
arbitration award.179

The FAA attempts to protect parties from this bias, as 9 U.S.C. § 10(a)(2)
permits federal courts to vacate arbitral awards “where there was evident
partiality or corruption in the arbitrators.”180 The Supreme Court also has
established its own impartiality standards.18 1 Additionally, Indiana’s Alternative
Dispute Resolution rules provide similar protections.182 For instance, an Indiana
arbitrator may not be partial, may not be a former relative or employee of any
party, and may not have an interest in the outcome of the dispute.183 Further, if
any one or more of these conditions occur, an Indiana court reserves the right to
vacate the award.184

Regrettably, though, the repeat-player effect is incredibly difficult to prove
or disprove.185 Justice Scalia put it best: “While computers function solely on
logic, human beings do not. All sorts of extraneous factors – emotions, biases,
preferences – can intervene, most of which you can do absolutely nothing about
(except play upon them, if you happen to know what they are).”186 For example,

175. Id.

176. Krasuski, supra note 107, at 298.

177. Id.

178. Beth Davis, Mandatory Arbitration Agreements in Long-Term Care Contracts: How to

Protect the Rights of Seniors in Washington, 35 SEATTLE U. L. REV. 213, 223 (2011).

179. See Richard M. Alderman, Pre-Dispute Mandatory Arbitration in Consumer Contracts:

A Call for Reform, 38 HOUS. L. REV. 1237, 1257 (2001) (noting that, out of nearly 20,000

arbitrations between First USA bank and their customers in 1999, First USA won 99.6 percent of

the time, prevailing in all but eighty-seven cases); Ramona L. Lampley, “Underdog” Arbitration:

A Plan for Transparency, 90 WASH. L. REV. 1727, 1750 n. 105 (2015) (noting that employees

arbitrating against one-shot employers won 32 percent of the time, employees arbitrating against

repeat-player employers won nearly 14 percent of the time, and pro se employees arbitrating against

repeat-player employers using a repeat arbitrator won 2 percent of the time).

180. 9 U.S.C. § 10(a)(2) (2019).

181. See Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145, 149-50 (1968).

182. See IND. ALT. DISP. RESOL. CT. R. 7.4 (2019).

183. Id. 

184. IND. CODE § 34-57-2-13(a)(2) (2019).

185. Alderman, supra note 179, at 1257.

186. Antonin Scalia, Introduction to ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR



2020] BACK IN MY DAY, WE HAD RIGHTS 679

the Indiana Court of Appeals reviews arbitrator impartiality accusations solely by
considering whether the proceedings were “fundamentally unfair.”1 8 7

Additionally, when a party fails to raise “specific allegations of bias,” neither the
size of the arbitration award nor the “arbitrator’s consistent reliance on one
party’s evidence and interpretation of the law” will raise an inference of arbitrator
partiality.188 These hurdles make it extremely difficult to vacate an arbitration
award in both Indiana courts and the Seventh Circuit.189

In sum, long-term care facilities’ recurrent involvement in arbitration proceedings
provides them with a substantial opportunity to befriend and influence their
arbitrator of choice. Moreover, it is incredibly difficult to vacate an arbitrative
award, as courts commonly use subjective and deferential standards in reviewing
an arbitrator’s decision.

D. Loss of Due Process Rights

Many families and patients also attempt to challenge nursing home arbitration
clauses on the grounds that they are unknowingly being stripped of their
constitutional rights.190 This forces patients to choose either between much-
needed health care or their right to a trial by jury.191 At the federal level, the
Seventh Amendment guarantees a right to a trial by jury in civil cases with values
in controversy that exceed twenty dollars.192 Indiana’s Constitution similarly
protects the right to a trial by jury in civil cases.193 

However, courts routinely hold that by signing an arbitration agreement,

CASE: THE ART OF PERSUADING JUDGES xxiii (1st ed., Thomson West 2008).

187. Bopp v. Brames, 677 N.E.2d 629, 633 (Ind. Ct. App. 1997).

188. MSP Collaborative Developers v. Fid. & Deposit Co. of Md., 596 F.2d 247, 251 (7th Cir.

1979) (citing Sweet v. Steve’s Cartage Co, 365 N.E. 2d 1110, 1111 (Ill. App. Ct. 1977); Bell

Aerospace Co. Div. of Textron, Inc. v. Local 516, UAW, 500 F.2d 921, 923 (2d Cir. 1974)).

189. See, e.g., Sphere Drake Ins. v. All Am. Life Ins. Co., 307 F.3d 617, 623 (7th Cir. 2002)

(holding that the arbitrator’s failure to disclose his prior relationship with and representation of

reinsurer in another arbitration proceeding did not justify setting aside the award); Merit Ins. Co.

v. Leatherby Ins. Co., 714 F.2d 673, 683 (7th Cir. 1983) (holding that the failure of the arbitrator

to disclose a prior business relationship with a principal of one of the parties did not justify setting

aside the award); Bopp, 677 N.E.2d at 633.

190. Krasuski, supra note 107, at 292.

191. John R. Schleppenbach, Something Old, Something New: Recent Developments in the

Enforceability of Agreements to Arbitrate Disputes Between Nursing Homes and their Residents,

22 ELDER L.J. 141, 159 (2014).

192. U.S. CONST. amend. VII (“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.”).

193. IND. CONST. art. 1, § 20 (“In all civil cases, the right of trial by jury shall remain

inviolate.”).



680 INDIANA LAW REVIEW [Vol. 53:661

parties voluntarily chose to waive these rights.194 For example, the Supreme Court
reiterated this opinion again recently in Kindred, holding that parties voluntarily
waive their Seventh Amendment rights when they choose to sign an arbitration
agreement.195 Indiana also acknowledges and supports the relinquishment effect
arbitration clauses have on parties’ due process rights.196 Even the Indiana Trial
Rules197 recognize a “very strong presumption of enforceability of contracts that
represent the freely bargained agreement of the parties.”198 Through these
examples, our courts and legislatures have therefore made clear that
Constitutional rights are not absolute and may be waived.199 

To conclude, patients and their families are likely to lose when bringing a
claim that nursing home patients were unlawfully stripped of their right to a jury
trial. Though both the United States Constitution and the Indiana Constitution
provide such rights, courts consider them waived upon both parties signing a
contract containing an arbitration clause.

III. THE BEST OF BOTH WORLDS: MEDIATION-ARBITRATION

Considering the precedent, the dicta, and the legislative history at both federal
and state levels, arbitration will likely continue well into the foreseeable future.200

Despite vocal opposition against it, arbitration provides many benefits that
traditional litigation cannot match.201 However, this is not to say that patient and
family concerns related to arbitration’s pitfalls are ill-founded. Indeed, binding
nursing home admission contracts often thrive on the power of well-educated,
well-represented industries and prey on the ignorance of consumers in
emotionally-charged circumstances.202 To correct this, and in order to restore
patient autonomy and procedural justice, the long-term health industry needs a
new form of alternative dispute resolution. Therefore, Mediation-Arbitration

194. Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1429 (2017); Sanford v.

Castleton Health Care Ctr., LLC, 813 N.E.2d 411, 420 (Ind. Ct. App. 2004).

195. Kindred Nursing Ctrs. Ltd. P’ship, 137 S. Ct. at 1429.

196. See Tender Loving Care Mgmt., Inc. v. Sheris, 14 N.E.3d 67, 74 (Ind. Ct. App. 2014)

(holding that a patient’s son waived the patient’s right to a jury trial by signing an arbitration

agreement); Sanford, 813 N.E.2d at 420 (holding that by signing a contract containing an arbitration

clause for the patient, the patient’s legal representative waived the patient’s right to a trial by jury). 

197. IND. T. R. 38(E) (emphasizing that “nothing in these rules shall deny the parties the right

by contract or agreement to submit or to agree to submit controversies to arbitration made before

or after commencement of an action”).

198. Tender Loving Care Mgmt., Inc., 14 N.E.3d at 74 (quoting Sanford, 813 N.E.2d at 420). 

199. Id. at 73.

200. See Edna Sussman & John Wilkinson, Benefits of Arbitration for Commercial Disputes,

A.B.A. 1 (last visited Apr. 1, 2020), https://www.americanbar.org/content/dam/aba/publications/

dispute_resolution_magazine/March_2012_Sussman_Wilkinson_March_5.authcheckdam.pdf

[https://perma.cc/29CG-S74F].

201. Id.

202. Tripp, supra note 105, at 161.



2020] BACK IN MY DAY, WE HAD RIGHTS 681

(“med-arb”), a hybrid model combining the benefits of both mediation and
arbitration, should replace sole arbitration and become the new standard of
dispute resolution for nursing home admission contracts.

A. The Benefits of Mediation-Arbitration

Though arbitration has developed into the dispute resolution model of choice
for the long-term care industry, patients and nursing homes could greatly benefit
from using the combined model of med-arb. “Med-arb is the melding of two well-
established processes for conflict resolution into one hybrid process.”20 3 More
specifically, “[m]ediation and [a]rbitration are used in conjunction with one
another” during this alternative dispute resolution process.204 The process uses a
single third-party neutral for both stages, beginning as a mediator and switching
to an arbitrator if the parties are unable to reach an agreement during the
mediation portion.205 

As courts are often under pressure to find more expedient alternatives for
resolving disputes, so is the alternative dispute resolution industry.206

Notwithstanding that litigation has experienced a downward trend in recent years,
both consumers and businesses felt far from satisfied with their out-of-court
alternatives.207 Discontent with arbitration has been at an all-time high for a
number of reasons, including its uncanny resemblance to a typical court
proceeding.208 In turn, arbitration’s litigious framework turned many displeased
parties towards mediation, a process that many consider much more customizable
and transformative than arbitration.209 However, as mediation gained popularity,
it, too, became ridden with attorneys attempting to turn it into a restrictive,
legalized proceeding.210 The med-arb model grew out of these problems that
stemmed from mediation and arbitration.2 1 1 Particularly, by combining the two
processes together, parties finally found a compromise between “arbitration’s
lack of flexibility and the increasingly legalized version of mediation.”212

Because med-arb possesses characteristics of both mediation and arbitration,

203. Mark B. Baril & Donald Dickey, Med-Arb: The Best of Both Worlds or Just a Limited

ADR Option?, MEDIATE.COM 1 (2009), https://www.mediate.com/pdf/V2%20MED-ARB%

20The%20Best%20of%20Both%20Worlds%20or%20Just%20a%20Limited%20ADR%20Opti

on.pdf [https://perma.cc/ZX94-8GFH].

204. Id.

205. Id.

206. Id. at 3.

207. Brian A. Pappas, Med-Arb and the Legalization of Alternative Dispute Resolution, 20

HARV. NEGOT. L. REV. 157, 161 (2015).

208. Id. at 161-62.

209. Id. at 162-63.

210. Id. at 165.

211. Id. at 166.

212. Id.



682 INDIANA LAW REVIEW [Vol. 53:661

it gives parties the best of both worlds.213 For example, the mediation portion of
the process gives parties the opportunity to first discuss their concerns and find
a resolution together without exercising the decision-making authority of a third
party.214 The third-party neutral simply facilitates dialogue between the parties in
the mediation stage; specifically, his or her only responsibilities are to empower
the parties’ voices and to help them craft their own customized solution.215

However, med-arb also embraces arbitration’s principle of finality.216 Therefore,
even if parties are unable to reach a mutually beneficial decision in the mediation
stage, the hybrid model warrants a settlement in the arbitration stage at the very
least.217 This provides parties with comfort and the guarantee of knowing that
their dispute will reach a final decision at some point in the proceedings.218 

Med-arb is also efficient. Precisely, the mediation phase usually allows
parties to narrow the core of their issues, many of which are simplistic and have
little to do with money or the law.219 Studies also show that a physician’s
willingness to apologize for any adverse medical events the patient experienced
while under the physician’s care may also factor into a patient’s decision to bring
a medical malpractice suit against a health care provider.220 Like other states,
Indiana has even gone so far as to codify this principle into law.221 These
“apology laws,” which render physician apologies inadmissible in court, have
resulted in the greatest reduction in average settlement size and time in cases
involving severe outcomes.222 Collectively, this information demonstrates that
while some parties do seek large, expensive settlements, many are simply
searching for an open conversation with their health care provider.223 Arbitration
on its own does not embrace this type of constructive dialogue between parties.

213. Martin C. Weisman, Med-Arb: The Best of Both Worlds, DISP. RESOL. MAG., Spring

2013, at 40.

214. Id. 

215. Katherine Triantafillou, The Art of Conversation and the Future of Mediation,

MEDIAT E.COM (Feb. 2015), https://www.mediate.com/articles/TriantafillouFutures.cfm

[https://perma.cc/GKA4-XMRK].

216. Baril & Dickey, supra note 201, at 4.

217. Id.

218. Id.

219. See Natasha C. Meruelo, Meditation and Medical Malpractice: The Need to Understand

Why Patients Sue and a Proposal for a Specific Model of Mediation, 29 J. LEGAL MED. 285-306

(2008) (studies show that patients in medical malpractice cases most frequently sue in five

situations: (1) when patients and physicians suffer a communication breakdown; (2) when the

patient feels ignored; (3) when the patient feels that their complaints or questions go unanswered;

(4) when physicians fail to express any genuine concern for the patient’s welfare; or (5) when the

patient simply feels angry.)

220. Benjamin Ho & Elaine Liu, Does Sorry Work? The Impact of Apology Laws on Medical

Malpractice, 43 J. RISK & UNCERTAINTY 141, 142 (2011).

221. See IND. CODE § 34-43.5-1 (2018).

222. Ho & Liu, supra note 220, at 141.

223. Id. at 141-42. 



2020] BACK IN MY DAY, WE HAD RIGHTS 683

On the other hand, med-arb allows parties to reach the heart of the conflict
through open-ended conversation, which potentially leads to much lower awards
and financial payouts than originally anticipated.  

Moreover, med-arb may also be more procedurally cost-effective than
arbitration. In fact, arbitration is not as cost-effective as one might think.224

Conversely, med-arb’s flexibility allows parties to structure their process in a way
that best fits their dispute, which could lead to a reduction in the amount of time
it takes parties to settle.225 For example, parties can save money by either solving
their disputes completely in the mediation stage or sorting through their disputes
in a lesser amount of time in the arbitration stage.226 In fact, studies show that
patients prefer mediation over other dispute resolution models,227 as mediation
provides parties with a sense of control over (1) the likelihood of the parties
reaching a mutually-satisfactory outcome and (2) the manner in which their side
of the story is told.228 

In sum, med-arb embraces the benefits of both mediation and arbitration
while still removing many of each’s shortcomings. The inherent structure of med-
arb, coupled with its time-saving ability, provides parties with much more
flexibility than traditional arbitration. 

B. Med-Arb Laws and the FAA

Med-arb offers many unique advantages that would serve long-term care
facilities and their patients well. Yet, as powerful as this hybrid model might be,
it serves no benefit if it is not an enforceable arbitrative procedure under the
FAA.229 Without such backing by the FAA, Indiana cannot mandate all state
nursing homes to use the hybrid model.230 Therefore, this Section advocates why
med-arb does in fact fit within the term “arbitration” for purposes of the FAA.

224. Arbitration: Not Necessarily A Better Option than Litigation, BUS. & TECH. L. GRP.: BUS.

L. ARTICLES ARCHIVE (2016), http://www.btlg.us/News_and_Press/articles/arbitration.html

[https://perma.cc/AUK3-BAKC] (noting that where a one-time court filing fee ranges from $100

to $200, arbitration filing fees could cost upwards of $750 or more, excluding ongoing

administrative costs, the hourly rate of an arbitrator, legal counsel, expert witnesses, and discovery

costs). 

225. Baril & Dickey, supra note 203, at 4.

226. Id.

227. David H. Sohn & B. Sonny Bal, Medical Malpractice Reform: The Role of Alternative

Dispute Resolution, 470 CLINICAL ORTHOP. & RELATED RES. 1370, 1370 (2012) (emphasizing that

mediation boasts 75 to 90 percent success in avoiding litigation, saves nearly $50,000 per claim,

and presents 90-percent satisfaction rates amongst both plaintiffs and defendants).

228. Donna Shestowsky, Procedural Preferences in Alternative Dispute Resolution: A Closer,

Modern Look at an Old Idea, 10 PSYCHOL., PUB. POL’Y, & L. 211, 211 (2004).

229. David J. McLean & Sean-Patrick Wilson, FAA Applicability to Med-Arb Agreements,

N.Y. L. J.: OUTSIDE COUNS., July 11, 2008, https://m.lw.com/thoughtLeadership/faa-applicability-

to-med-arb-agreements [https://perma.cc/4SMX-TA5N].

230. See generally id.



684 INDIANA LAW REVIEW [Vol. 53:661

Congress did not specify what constitutes arbitration under the FAA,231

leaving it up to other state and federal courts to interpret.232 The Supreme Court,
the Seventh Circuit, and Indiana state courts all have yet to interpret the definition
of “arbitration” for purposes of the FAA.233 Other circuits have made the attempt
but are split as to its meaning.234 Some jurisdictions have already begun to focus
in on the definition’s details, such as progressively deciding that med-arb
agreements do constitute “arbitration” for purposes of the FAA.235

Under federal law, the FAA preempts any state law that discriminates against
arbitration on its face or covertly accomplishes the same objective by
“disfavoring contracts that have the defining features of arbitration
agreements.”2 3 6 Therefore, if a state law or decision attempts to invalidate a
contract containing an arbitration clause, it will likely violate the FAA and will
be met with heavy skepticism.237 Though the Supreme Court has not spoken on
the issue, the med-arb model likely fits within the FAA’s definition of
“arbitration” for two important reasons.

First, med-arb does not discriminate against arbitrative processes or their
purposes. Rather, med-arb facilitates the arbitrative process and improves the way
in which it functions.2 3 8 By providing a mediation stepping stone before the
arbitrative phase, med-arb allows parties to discover the heart of their

231. 9 U.S.C. § 2 (2019) (emphasizing that the statute provides no guidance on what

constitutes “arbitration”).

232. McLean & Wilson, supra note 229.

233. See generally id.

234. Compare Advanced Bodycare Sols., LLC v. Thione Int’l, Inc., 524 F.3d 1235, 1240 (11th

Cir. 2008) (holding that mediation alone is not within the FAA’s scope), with Salt Lake Tribune

Publ’g Co., LLC v. Mgmt. Planning, Inc., 390 F.3d 684, 689 (10th Cir. 2004) (holding that the

correct standard to determine what constitutes “arbitration” under the FAA is whether the process

at issue sufficiently resembles class arbitration, in that the disputants empowered a third party to

render a final and binding decision), and Fit Tech, Inc. v. Bally Total Fitness Holding Corp., 374

F.3d 1, 7 (1st Cir. 2004) (holding that the true test for deciding whether a dispute resolution model

applies under the FAA is to look for the four “common incidents” of classic arbitration), and

Harrison v. Nissan Motor Corp., 111 F.3d 343, 350 (3d Cir. 1997) (holding that arbitration

constitutes a clear agreement to submit a dispute for a final and binding decision by a third party),

and Hartford Lloyd’s Ins. Co. v. Teachworth, 898 F.2d 1058, 1062-64 (5th Cir. 1990) (holding that

because appraisals were not within the definition of “arbitration” under Texas law, the FAA did not

apply), and Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579, 1582 (9th Cir. 1987) (holding that

state law determines the definition of “arbitration” for FAA purposes).

235. See, e.g., Design Benefit Plans, Inc. v. Enright, 940 F. Supp. 200, 206 (N.D. Ill. 1996).

236. Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1423 (2017).

237. Jonathan W. Garlough, U.S. Supreme Court Says: We Mean It – You Can’t Single Out

Arbitration Agreements for Disfavored Treatment, FOLEY & LARDNER LLP (May 22, 2017),

https://www.foley.com/us-supreme-court-says-we-mean-it--you-cant-single-out-arbitration-

agreements-for-disfavored-treatment-05-22-2017/ [https://perma.cc/HQC4-3P94].

238. See generally Sarah Benzidi, Med-Arb: Hot to Mitigate the Risk of Setting Aside or

Refusal of Recognition and Enforcement of a Med-Arb Award, 10 AM. J. MEDIATION 1, 25 (2017).



2020] BACK IN MY DAY, WE HAD RIGHTS 685

disagreement autonomously.239 This in turn prepares them for the arbitration
portion and expedites the process should they need it, as the parties’ proactive
reflection on the issues better allows the arbitrator to sort through the
disagreement and make a clear, equitable decision.240 Additionally, the FAA
appears to allow for some flexibility anyways, as the law does not prevent “the
enforcement of agreements to arbitrate under different rules than those set forth
in the Act itself.”241 Therefore, the law appears to be at least somewhat open to
dispute resolution models that do not perfectly conform to traditional arbitral
standards.242

Second, much like classic arbitration agreements, “[m]ed-arb agreements rely
on arbitration as the final stage of dispute resolution.”243 Specifically, the
arbitration stage is an inherent part of the arbitrative process in med-arb,
guaranteeing finality while also giving each party the opportunity to negotiate and
discuss their true needs.244 Med-arb does not alter the substantive objectives of
arbitration. Med-arb also does not provide parties an opportunity to escape their
contractual commitment to a binding process; it simply specifies the procedural
manner in which an arbitration-styled proceeding will be conducted.245 Put
simply, “[r]egardless of whether the final product of a med-arb results entirely
from mediation or both mediation and arbitration, it becomes the entire [arbitral]
settlement, which is binding and enforceable.”246 

In conclusion, med-arb does not attempt to lessen or overtake the impact of
traditional arbitration; it merely provides a modernized, procedurally just way of
enforcing it. Because med-arb does not discriminate against arbitration, it likely
falls within the FAA’s definition of “arbitration” and can probably be statutorily
mandated in states like Indiana.

C. Amending Title 34, Article 57 of the Indiana Code

With its characteristics of flexibility, efficiency, and party empowerment,
med-arb has the potential to fill many of the voids in the current nursing home
arbitration framework. Therefore, this Note argues that Title 34, Article 57 of the
Indiana Code should be amended to include a Long-Term Care Admissions
Arbitration chapter. Title 34 covers Indiana Civil Law and Procedure, while
Article 57 specifically houses laws for Arbitration and Alternative Dispute

239. Id.

240. Id. at 9.

241. Volt Info. Scis., Inc. v. Bd. of Trs., 489 U.S. 468, 479 (1989).

242. See id.

243. McLean & Wilson, supra note 229.

244. Bruce A. Edwards, Using a Hybrid Mediation/Arbitration Approach – Its Benefits and

Risks, EDWARDS MEDIATION ACAD. (Aug. 5, 2016), https://edwardsmediationacademy.com/using-

hybrid-mediationarbitration-approach-benefits-risks/ [https://perma.cc/S8AW-X4E4].

245. Id.

246. John T. Blankenship, Developing your ADR Attitude: Med-Arb, a Template for Adaptive

ADR, 42 TENN. B. J. 28, 35 (2006).



686 INDIANA LAW REVIEW [Vol. 53:661

Resolution.247 Within Article 57 lies a chapter specifically designated for Family
Law Arbitration.248 The General Assembly should add a chapter addressing Long-
Term Care Admissions Arbitration immediately underneath this family law
chapter. 

This new chapter should provide that, if an Indiana nursing home, in its
admissions agreement, elects to bind its patients to mandatory arbitration, the
nursing home must include contractual language in the agreement obligating
parties to first engage in mediation before progressing to the arbitration stage.
Along with this requirement, the chapter should provide general arbitration
guidelines for parties to follow if and when a dispute arises similar to those
codified in the Family Law Arbitration chapter.249 

Specifically, the Family Law Arbitration chapter provides multiple sections
of procedural guidance to parties who wish to settle their family law dispute with
arbitration.250 The statute further provides rules pertaining to who is allowed to
arbitrate,251 the duties of the arbitrator,252 and the amount of time in which an
arbitrator has to render a final, binding decision.253 Though the Family Law
Arbitration chapter may not cover all of the same concerns surrounding nursing
home arbitration, it nonetheless serves as an informative template from which to
build. Creating such a chapter for nursing home arbitration would be incredibly
practical; it could outline the basics as to who can participate in med-arb, how the
med-arb process must generally operate, and when the neutral third-party is
obligated to switch from the mediation stage to the arbitration stage.

Most importantly, the nursing home arbitration chapter should specify what
language a nursing home must include in its contract in order to ensure med-arb
is used over sole arbitration. Specifically, the chapter should make it clear that if
a nursing home wishes to engage its residents in arbitration to settle disputes, it
must first require both parties to participate in mandatory mediation. Such a rule
would essentially force nursing homes to provide desperately-needed protections
to their residents from the beginning of their stay. As this Note has previously
demonstrated, the elderly and their families often fail to understand all of the
terms provided in their admissions agreements.254 Changes in cognitive
processing, high amounts of stress and paperwork during admission, and general
unfamiliarity with legal terminology are all contributing factors as to why nursing
home residents are unlikely to fully read or comprehend the admissions contracts
they sign.255 Therefore, the General Assembly must protect this vulnerable
population by requiring nursing homes to implement such ethical safeguards

247. See generally IND. CODE § 34-57 (2019).

248. See generally IND. CODE § 34-57-5 (2019).

249. See id.

250. See generally Id.

251. IND. CODE § 34-57-5-2 (2019).

252. IND. CODE § 34-57-5-5 (2019).

253. IND. CODE § 34-57-5-7 (2019).

254. See supra Part II.

255. See supra Part II.



2020] BACK IN MY DAY, WE HAD RIGHTS 687

before a dispute later arises.
Some nursing homes might argue that such a statutory mandate violates their

right to freedom of contract. However, as a general matter, the “freedom of
contract” is frequently overridden by the demands of state statutes.256 For
example, legislatures frequently provide mandatory terms that private parties
must incorporate into their contracts to be enforceable.257 An example of this lies
in the Uniform Commercial Code,258 where certain consumer credit contracts are
obligated to include language preserving a consumer’s defenses against assignees
of the contract.259 Moreover, many industries have enacted statutes mandating that
their members participate in various forms of alternative dispute resolution.260 In
fact, evidence suggests that mandatory med-arb-styled dispute resolution has
already become mandated by law in some federal industries.261

Outside of statutory enforcement, many of the familiar, everyday areas of the
law use med-arb to solve problems; disagreements involving “commercial
disputes, community disputes, intergroup conflict, [and] collective bargaining
between employers and unions,” for example, commonly rely on the med-arb
process to reach solutions in both high-stakes and emotional settings.262

Furthermore, med-arb is also gaining traction on an international scale.263

Countries like China and Germany incorporate mediation and settlement
agreements into their arbitration proceedings.264 China, Singapore, and Japan all
use hybrid resolution processes in resolving many of their commonplace disputes,
as well.265 Australia has even taken it one step further by imposing its own
statutory safeguards to protect its med-arb practices.266

To conclude, adding a section to the Indiana Code requiring nursing homes

256. See generally David Weber, Restricting the Freedom of Contract: A Fundamental

Prohibition, 16 YALE HUM. RTS. & DEV. L.J. 51 (2013).

257. See generally U.C.C. § 3 (LEGAL INFO. INST. 2002).

258. See id.

259. See id at § 3-203.

260. See, e.g., 29 U.S.C. § 172 (2019) (Department of Labor’s Labor Management Relations

Act); 7 C.F.R. § 1946 (2019) (Agricultural Mediation Program).

261. See 49 U.S.C. § 40122 (2018).

262. Allan Barsky, “Med-Arb”: Behind the Closed Doors of a Hybrid Process, 51 FAM. CT.

REV. 637, 639 (2013).

263. Brian Kelso, Drawing Outside the Lines: Utilizing International Approaches to Resolve

Due Process Concerns in Med-Arb, A.B.A. 1, 10-20 (2015), https://www.americanbar.org/

content/dam/aba/events/dispute_resolution/lawschool/boskey_essay_contest/2015/Drawing_Out

side_the_Lines_Utilizing_International_Approaches_to_Resolve_Due%20Process_Concerns_in

_MedArb.pdf [https://perma.cc/7CXG-K3KB].

264. Id. at 11-17.

265. Id. at 15.

266. Julian Bailey et al., Med-Arb: NSW Case Highlights the Importance of Strict Compliance

with the Relevant Legislation, WHITE & CASE: PUBL’NS & EVENTS (June 29, 2018),

https://www.whitecase.com/publications/alert/med-arb-nsw-case-highlights-importance-strict-

compliance-relevant-legislation [https://perma.cc/6DYZ-B7AL].



688 INDIANA LAW REVIEW [Vol. 53:661

to use med-arb if they choose to invoke arbitration would ensure that patients’
interests remain protected. Many industries both inside and outside the United
States embrace hybrid dispute resolution as part of their reality.2 6 7 It is time that
Indiana’s long-term care industry do the same. 

CONCLUSION

In Kindred Nursing Centers Ltd. Partnership v. Clark, the Supreme Court did
not just reaffirm its strong support of general mandatory arbitration clause
enforcement under the FAA; it backed the enforceability of such clauses in
nursing home admission contracts, while also restricting a state’s ability to enact
statutes limiting them.268 By holding that Kentucky’s “clear-statement rule,”
which required arbitration agreements to be executed only by individuals with
explicit authority to do so, violated the FAA,269 the nation’s highest court
effectively put its seal of approval on binding, contractual dispute resolution in
the long-term care industry. This decision will likely have a far-reaching impact
on parties already grappling with the difficult choice of putting their loved one
in a nursing home, forcing families to decide whether stripping their loved one
of their rights is worth getting them the health care they desperately need.

This Note has argued that Indiana should enact a Long-Term Care
Admissions Arbitration chapter under Title 34, Article 57 of the Indiana Code,
obligating nursing homes that choose to contractually bind their patients to
mandatory arbitration to first require a mediation phase before the binding
arbitrative phase. This conclusion is supported by the wide array of research
gathered addressing patient reasoning for filing lawsuits, patient preferences in
the dispute resolution process, and the power of the med-arb process to seize the
benefits both arbitration and mediation cannot offer individually. Med-arb
provides the potential to restore patient empowerment and procedural justice
without sacrificing practicality and finality. By implementing this effective and
innovative model, Indiana can take meaningful first steps in protecting the rights
and interests of its most vulnerable Hoosiers.

267. See generally Kelso, supra note 263, at 10-20.

268. Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1425 (2017).

269. Id. at 1423.