Preparing to mediate a healthcare liability case in Georgia? Whether you have a medical malpractice case against professionals, a wrongful death case, or a negligence case against a healthcare entity, as a trial attorney and mediator who has handled these types of cases for over 22 years, I’ve compiled these five healthcare mediation strategies to help put you, and your clients, in the best position to reach a settlement agreement. When mediating a healthcare or medical malpractice case, keep the following five strategies in mind:
#1: Have the Right Mindset
You are mediating your healthcare case, whether pre-suit, during discovery, or right before trial. You have agreed with all parties — whether required to attend by court rule, standing order, or scheduling order — to attend. No matter when or why, the goal of any mediation is to reach an agreement to resolve the case.
But mediation is not a trial and should not be approached as a trial. Prepare for mediation by candidly assessing strengths and weaknesses of your case. Identify the top two, three, or four of both your strengths and weaknesses, and be prepared to talk about them. Remember, mediation is a safe space, so be ready to discuss everything with your neutral.
Tip: Keep in mind that mediation is not a trial. Being open about the strengths and weaknesses of your case can encourage settlement. Even if the case doesn’t settle at mediation, you will learn more about your case — and the other party’s case — by participating.
#2: Prepare the Case for the Neutral
Many mediation participants feel they must focus on the opposing party to get the opposing party to “be reasonable.” This can work in some cases, but often the neutral needs a solid foundation to help all parties find the “reasonable” resolution. This starts with providing the mediator with a written summary of the case from your client’s perspective. The position paper should be direct, concise, and organized. Provide information about the available insurance coverage and prior settlement negotiations.
Tip: Create your written position paper and get it to the neutral a week or two ahead of the mediation to give the mediator time to read and digest it.
#3: Consider Giving an Opening Statement
For years as an attorney and mediation participant, I was reluctant to give an opening statement. I felt I would “tip my hand” too much to the opponent, risk upsetting other participants and “poisoning the well,” and would not accomplish anything. As a neutral, however, I like hearing from the participants in an opening session.
The key is that the opening is presented to the neutral. A quality opening statement in healthcare liability mediation starts with a discussion of the chronology, any disputed facts, and the competing medical theories. Think of the opening as a chance to educate the neutral about the case.
I spoke with an insurance representative recently about what he looks for in a plaintiff’s opening statement. He recommended that the plaintiff be focused, concise, and provide information, such as the top one or two points and the supporting evidence for those points. This is good advice.
Tip: Plan to make a concise, compelling opening statement part of your mediation. It’s an opportunity to help educate your mediator and set out the issues at play.
#4: Remember Your Clients
Healthcare litigation is about loss; every case is about death or significant disability. For claimants, this can be highly emotional, especially if there has been the loss of a loved one. Many claimants harbor feelings of disappointment and disillusionment because they looked to the healthcare provider to heal them and instead, they suffered a loss. For the responding healthcare providers, entities, and insurers, this is important to remember.
It is equally important that the claimants remember that the converse is true; healthcare litigation rarely involves intentional or even reckless acts, even if those words are used in pleadings. Rather, the case typically involves a highly trained professional who has dedicated his or her life to the healing arts. Professionals accused of causing an injury or death often feel as strongly about the defense of what they did as part of helping the patient as the claimant may feel about the loss he or she has suffered.
All parties should remember the humans involved, especially when the mediation turns to discussions of money. These cases matter to everyone and gaining buy-in to an agreement may require more than just money.
Tip: Apologies to the claimants and reciprocal statements of respect for the professional must be sincere to be effective. A rehearsed apology or statement of respect may be worse than none, so be deliberate.
#5: Know Your Terms
About five years ago, I handled a matter that was negotiated by an insurance representative without my direct involvement. Claimant’s counsel and the insurance representative reached an agreement on the settlement amount but did not discuss confidentiality. After claimant’s counsel advertised the amount, the insurance representative wanted me to move against the attorney and plaintiff for breaching confidentiality. Claimant’s counsel took the position that confidentiality was not part of the agreement because it was not discussed during negotiations.
The matter eventually resolved, but from that point forward, I made it a habit to provide opposing parties with a list of discussion points for the negotiated settlement agreement.
It’s a good practice for all participants to discuss terms in advance of the mediation. There are often “standard terms” and the settlement memorandum for mediation captures most of these. But if there are any potential sticking points, such as the amount of time to issue the check, resolution of liens, compliance with the Medicare Secondary Payor Act, non-disparagement, or carve-outs for parties who are not settling, make it a point to start the discussion before mediation.
Tip: If you need specific terms, confirm with the other side that all offers are subject to those terms before dollar amounts are discussed.
These five healthcare mediation strategies are simple, yet effective ways to help set the stage for more productive settlement discussions at mediation. Regardless of whether you represent the plaintiff or a defendant, they can help you prepare for your next healthcare or medical malpractice mediation.
** Originally published in the Daily Report and reprinted with permission.
