What to Expect in Mediation

Published by the Harris County Medical Society

Written by Randall E. Butler, P.C. – Mediation & Conflict Management
(Randall@ButlerMediation.com)
Copyrighted by Randall E. Butler, all rights reserved. 
This article reprinted by permission.

Mediation has been proven effective as a method of settling disputes of every nature and character. In my experience, mediation has been a particularly effective tool for resolving medical malpractice claims.

The role of the mediator is not to decide the case or any of the issues in the case. Instead, the mediator functions as a neutral guide through a confidential structured process of information sharing and negotiation. The ultimate objective is to achieve a wise resolution of the dispute on a basis that is acceptable to all of the parties. The mediator should, to a large extent design and control the process, but the parties control the outcome.

Most mediations begin with a general session attended by all of the parties to the lawsuit, their lawyers, and insurance representatives. During the opening session each of the lawyers presents his or her client’s case, focusing on the chronology of events, the applicable standards of care, and causation, all in the context of the medical science involved. The purpose of the case presentations is to begin addressing your own and your opponent’s Best Alternative To a Negotiated Agreement, or BATNA (an acronym originating with Roger Fisher in his seminal book, Getting to Yes, Negotiating Agreement Without Giving In). In a medical malpractice case, your only alternative to a negotiated settlement is a trial. Examination of the trial alternative continues after the general session in the private caucuses.

In an alternating series of private caucuses, the mediator meets separately with each of the parties, their lawyers, and representatives behind closed doors. An effective mediator functions as an agent of reality in the initial private caucuses, helping the parties to fully examine the likelihood of success at the courthouse. A significant amount of time may, therefore, be spent further exploring the issues raised by the opposition in the general session. Your lawyer may also be asked to assess the probability of success at trial. This is a crucial time during the mediation in which you and your attorney need to be able to fully address the evidence, the testimony, and the medical principles applicable to the case. You will want to fully arm the mediator for his private caucus with your opponent because you want your opponent to recognize the risks at trial as compared to the option of accepting your settlement offer, if any. Your opponent has the same objective. When the mediator appears to be siding with the opposition, remember that his role is that of devil’s advocate. Having filled that role, the mediator will likely move on to address other key elements of an effective mediation.

One of those elements is identification of the interests of the parties with an eye to meeting as many of the interests of the parties as possible. Some of those interests may be common to all of the parties, for example: achieving closure. Most often the parties’ ultimate interests are opposed: the plaintiff is requesting money to be paid as compensation for an alleged injury and the defendant would prefer to pay nothing. The task of the mediator is to help the parties to fairly compromise opposing interests. This will be accomplished by directing the attention of the parties to objective criteria that may exist by which the fairness of a compromise may be measured.

In the context of a medical malpractice case objective criteria of fairness usually fall into two categories. The first involves the likely range of verdict at trial. What the parties would consider to be a fair amount to be paid in settlement is most often a function of the probable range of verdict on the damages and the probability of a jury finding for the plaintiff. That is why most mediators will spend some time questioning your lawyer about what a jury would be likely to award in damages in the event of a win for the plaintiff.

Another category of objective criteria of fairness is the actual cost of caring for and providing for the needs of an injured plaintiff. Attention to what would actually meet the needs of a catastrophically injured patient not only addresses the issue of fairness but also the interests and needs of the plaintiff as they might be met in a negotiated settlement. A settlement that comes close to meeting the actual needs and interests of a plaintiff is far more likely to be accepted than one that does not. This is not meant to imply that settlements in every medical malpractice case should meet the needs and interests of the plaintiff. The plaintiff’s case may be so weak and the likelihood of success so remote, that the parties may ultimately agree that only a nominal settlement or even a negotiated dismissal would be the only compromise acceptable to all parties. In that case, the only interest of the plaintiff that can be met may be that of not incurring additional expenses in a losing endeavor.

Usually each private caucus ends with the mediator requesting and receiving an actual dollar offer or demand to be conveyed to the other side, along with the other terms or conditions of settlement. In addition to her roles as a neutral guide and agent of reality, the mediator serves as a shuttle diplomat, conveying offers and demands from one party to the other, as she spends time with each of the parties in a series of private caucuses. Generally mediation takes the better part of one day; but the length of time consumed during the negotiation phase of the mediation depends in large part on the negotiating pattern adopted by the parties. The mediation concludes either with the parties reaching agreement or with the declaration of an impasse in the negotiations by the mediator.

As an effective and efficient method of resolving conflict, mediation has no rival. No other dispute resolution system offers the parties the same level of control over the outcome while at the same time offering real potential for win/win solutions at a low economic and human cost. Forearmed with an understanding of the role of the mediator, the mechanics of the process, and the rationale underlying the various phases of mediation, you should be better able to utilize mediation as an effective tool for resolving any conflict.

For further information concerning mediation, negotiation consultation, and conflict analysis, contact Randall Butler at the address below.