How mediation works

May 5, 2006

Mediation is a common way to resolve medical malpractice cases without going to court.

Q. I've been named in a lawsuit that's scheduled for pre-trial mediation. I've been informed that the attorney assigned by my insurance company will represent me and that my attendance isn't mandatory. Should I still plan to go, or are there good reasons not to? Can you explain the mediation process and how it differs from arbitration?

As a defendant in mediation, you won't formally testify, and you won't be cross-examined. Your attorney may present your case or ask you to explain what you did, and why. You may also make a statement like: "I'm truly sorry for this injury. It certainly wasn't intentional; I used my best medical judgment. I'm here now because I want the case resolved."

Should you attend the mediation session? That depends. If you do speak, and you're well-prepared, articulate, and genuinely concerned about the plaintiff's injury, that may impress the mediator. It may also discourage the plaintiff and his attorney from pushing for a trial. But if your attorney is worried that you'll lose your temper at the session, he may ask you to stay away. He'll explain that you couldn't make it because of your "busy patient schedule."

If you do attend the session, you may be able to help your attorney present your case or to critique the medical claims made by the plaintiff's attorney. Such conversations should take place during a recess, however, not during the actual proceeding.

Finally, your attendance depends on whether you really want to settle. If you don't, showing up is a waste of everyone's time because you're going to end up in court anyway. But if you're willing to settle, then it's worth attending because it shows you're serious about resolving the case. (In fact, your attorney will probably have already conveyed that point to the plaintiff's attorney.) If your insurance carrier is willing to settle, a representative will probably attend the session as well.

Arbitration is a more formal method of dispute resolution, with both sides presenting evidence and arguments. It may be conducted by a single arbitrator or a three-person panel. Unlike mediation, the arbitrators' decision is usually binding, which means that the parties involved can't challenge it and still go to trial. For that reason, malpractice attorneys rarely agree to arbitration. In several states, in fact, statutes or case law have declared that binding arbitration agreements between physicians and patients are "contrary to public policy," and therefore unenforceable.

The author is a malpractice defense attorney with LeClair Ryan in Richmond, VA. He can be reached by e-mail at jfitzpatrick@leclairryan.com
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This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 973-847-5390 or e-mail it to memalp@advanstar.com
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