Last month, I read a post at The Doctors Company blog which described an growing interest in mediation as a tool for resolving medical malpractice lawsuits. While various factors are potentially behind this trend, the author, Marco Spadacenta, suggests that pandemic-related backlogs in the court system are chief among them. He makes the point that “when...the facts and circumstances of the matter” are a good fit, mediation can bring a medical malpractice lawsuit to a close more efficiently for everyone. So, today, let's ask: What is mediation and how does it work in medical malpractice litigation?

What is Mediation?

Mediation is one form of alternative dispute resolution (ADR). It always involves a neutral party, called the mediator, whose role is to facilitate the dialogue which will hopefully allow the disputing parties to resolve their differences.

Unlike arbitration, in mediation the mediator may suggest potential solutions, but they do not issue a binding decision or judgment, nor do they determine what is “right”. Instead, the goal of mediation is for the opposing parties to come to a mutually agreed-upon solution.

How Does Mediation Relate to Settlement?

As I've mentioned before, only 7-10% of medical malpractice lawsuits in the U.S. go all the way to trial. (Read more on Trial here)

The vast majority are either dropped, or settled with a monetary payment to the plaintiff on behalf of one or more defendants. Mediation is merely one of the possible paths to settlement. (Click here for FAQs on Settlement)

Pros and Cons of Mediation

As with most things in life, there are pros and there are cons to mediation.

PROS:

• When mediation is successful, it can bring a lawsuit to a close sooner and less stressfully than other paths to settlement. For many, alleviating the stress of having a lawsuit hanging over them as promptly as possible is a huge benefit.

• By definition, mediation also involves less time, energy, and distress than going to trial, generally an exhausting experience for all involved.

• Additionally, mediation provides greater confidentiality, thereby reducing the worries some physicians, especially in smaller communities, have regarding the potential for bad press. In general, information exchanged in mediation is considered privileged, while the transcript of a trial becomes a part of the public record.

CONS:

• For a certain group of defendants, however, particularly when they feel very strongly that they met the standard of care, it feels important to have their “day in court” in the hopes that a jury will render a verdict in their favor.

• Furthermore, there are hospitals, health systems, and individual defendants who hold the very reasonable view that settling cases which are likely to be won in a courtroom merely fuels a further tendency for members of the community to file frivolous lawsuits.

  In either of these instances, mediation may not be the right path to resolution.

Types of Mediators

I had the opportunity to talk with a seasoned medical malpractice defense attorney regarding his experience with mediation. He indicated that mediation can take place in one of two ways:

1. Occasionally, the parties are forced to meet with a court-ordered mediator. He noted that in many instances, these mediators have no particular experience with medical malpractice matters. He estimated that in his experience, these mediation attempts achieve a 5-10% success rate.

2. More commonly, however, the parties to a medical malpractice lawsuit – both the plaintiffs and any defendants – jointly agree to work with a private mediator. These private mediators run the gamut from retired judges to former plaintiff's or defense attorneys. These individuals bring a long history of experience with the process of medical malpractice litigation and make a commitment to neutrality in the mediation process.

   According to the attorney with whom I spoke, the number of excellent mediators in this domain is small, and accordingly, the very best among them may book 6 months in advance or more. However, the likelihood of ultimate success with a top-notch mediator is much higher, making it well worth the wait. This defense lawyer estimates that parties working with a talented mediator may reach a mutually acceptable agreement 70-80% of the time.

What is the Process?

The path to mediation in a med mal lawsuit will often begin at some point well into the process of discovery, the fact-finding phase of a lawsuit. One of the parties to the lawsuit or the indemnity carrier may suggest mediation, or perhaps at a pre-trial meeting, the judge may ask the congregated lawyers, “Have you considered mediation?”

Once the plaintiffs and all defendants have agreed to mediation and selected a mediator, each party will provide a “mediation brief.” This may include portions of the medical record, expert witness reports, a discussion of themes, strengths and weaknesses of the case, and a summary of damages from each party's point of view.

The mediation itself occurs in person and may extend over several days. The mediator will meet with the parties jointly and possibly also individually to get greater insight into their perspectives and goals for mediation.

The plaintiff or their family is usually present, and physician-defendants may be as well. In the case where the physician's malpractice insurance policy contains a consent clause (a clause specifying that the insured physician must give consent in order for the insurance company to settle), if the physician has given consent for settlement, they need not be present for the mediation.

According to the defense lawyer I spoke with, participants in a mediation work at the process for hours and may return another day if needed. If negotiations reach an impasse, the mediator may create a mediator's proposal for the group's consideration. One of the beauties of mediation is that, in a case involving three or more parties, if not all parties agree to the mediator's proposal, none of the other parties will ever know who didn’t agree.

If these steps do not resolve the matter, it will likely proceed to trial. For that reason among others, everything that occurs at mediation remains privileged and confidential, and cannot be used against either party at trial.

If mediation produces an agreed upon settlement, that payment to the plaintiff results in a National Practitioner Data Bank report like any other. (Click here for more on the NPDB) And in some states, settlements are uniformly reported to the State Medical Board, where you may require continued representation by your defense attorney (usually covered by your indemnity carrier as well).