An interesting story out of Pennsylvania speaks to the tension that many attorneys face between the litigation process that leads a case towards a trial by jury and the emerging trend towards resolving disputes in informal settings outside a court.

The case contains a great deal of complex procedural maneuverings that may not make a whole lot of sense to those unfamiliar with the process, but, in a nutshell, while an alleged victim of misconduct in a nursing home was still alive, an individual with power of attorney agreed to take the dispute with the nursing home to alternative dispute resolution (ADR) that generally includes such options as binding arbitration and non-binding mediation “settlement discussions.”

After this individual died, however, the family filed a wrongful death lawsuit that the nursing home then turned around and attempted to have thrown out due to the prior ADR agreement.

The court sided with the victim’s family, however, holding that the party’s constitutional rights trump any contractual agreement — particularly where the law mandates that a nursing home abuse and neglect action be brought in the same lawsuit as a wrongful death claim stemming from the same dispute.

Now, granted, Pennsylvania cases don’t have the force of law in Illinois, but looking at the basic facts we know from the article, the issue speaks to a growing nationwide trend — state courts tend to err on the side of favoring ADR.

Particularly within the context of a nursing home abuse and neglect case, there are a lot of advantages to going the ADR route (a route we often take ourselves, to a usually high degree of success): it prevents dragging the victim or her family through a long drawn-out process where they may have to re-live traumatic events time and again, it also shortens a potentially lengthy and costly discovery process where nurses, staff, and others that may not even be employed by the nursing home anymore would need to be located, questioned, and deposed, amongst other benefits.

What occasionally gets lost in the mix, however, is that the victim and/or their family is entitled to their day in court and, considering the strong preference almost all state courts tend to overwhelmingly give ADR agreements, it will be interesting to see if this line of reasoning catches on and the effect it might have in other states and other areas of the law.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have anyquestions and to learn how we may be able to help you or your loved one who has been a victim of nursing home abuse or neglect – in particular, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters – large or small.

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