Will AHLA / AAA arbitrate pre-injury disputes? How to Draft Agreement to Avoid That Problem

Many arbitration organizations are concerned about taking on pre-injury arbitration agreements because, presumably, plaintiffs are trying to avoid arbitration by claiming that the forum is unfair (bad publicity). For example, the American Health Lawyers Association amended their rules as indicated here. FAL.com obtained an affidavit from Peter M. Leibold, CEO of AHLA, which sets out their position against accepting these arbitrations, absent a court order.

A "pre-injury" arbitration agreement is one signed before the alleged tort — for example, a nursing home admission agreement is signed before the admission and before the resident allegedly received poor care.

If your pre-injury arbitration agreement calls for arbitrating before a specific group (e.g., AAA, AHLA, etc.) then you will want to confirm whether that group will accept pre-injury arbitration agreements. If you are seeking to enforce such an agreement, and you win, you will likely want the court to draft an order which specifically directs the parties to arbitrate with that group. As indicated above, with a specifically-worded court order, many arbitration organizations will take those arbitrations per court order.

Practice tip: if you are drafting an arbitration agreement, why not indicate that arbitration shall be "governed by" the rules of a particular organization, rather than "administered by" that group? That way, even if the arbitration group dissolves or refuses to hear pre-injury claims, your arbitration clause survives, just using their rules.

For more on medical malpractice arbitration, see Medical Arbitrations in Utah: A Plea For Greater Fairness and Equal Bargaining Positions.