The Role of the Mediator in Med-Mal Cases

By Roseann Lynn Brenner

For litigants today, faced with the potential of a long and drawn-out jury trial, along with the uncertainties that accompany such an exercise, mediation is becoming a very important alternative in the dispute resolution process.

I recently had the opportunity to interview Fredric L. Goldfein, an attorney with over 35 years of national experience litigating major casualty, toxic tort and professional liability claims. Because he has successfully litigated hundreds of cases at trial and on appeal, Mr. Goldfein is frequently consulted to assist parties in the resolution of complex and high profile cases in an alternative dispute resolution forum. He has particular expertise in medical-legal matters on behalf of healthcare providers and their insurers, as well as drug and device manufacturers.

Following are some of Mr. Goldfein's insights into why alternative dispute resolution may be a good alternative to trial for some parties, and what steps can be taken to encourage a more successful mediation outcome.

Q. Why Do Parties Choose Alternative Dispute Resolution over Traditional Court Proceedings?

A. The ability to bring the matter to completion in an expeditious and more cost-efficient manner is perhaps the driving force; at the same time the ability to be more participatory is also a factor. Many court dockets are overcrowded and, unfortunately, the parties are often required to wait to be heard. This backlog often results in unpredictable scheduling, and the parties may prepare for trial only to have the matter deferred.

This uncertainty is not only unsettling, but also expensive. Witnesses are retained and schedules rearranged, causing inconvenience and frustration. In some situations the opposite is true, and the parties are subjected to a docket that imposes deadlines and the general feeling of "a rush to judgment."

The parties in the court system have little to say about the pace at which their case proceeds through the system, and even less to say about the ground rules of adjudication. In short, parties are forced to litigate their dispute in what is often a non user-friendly venue with timetables and rules not of their choosing.

Alternative dispute resolution (ADR) allows the parties a far greater role in framing and establishing the rules of engagement. The parties who chose ADR can jointly agree upon just about anything. Whether it relates to the manner in which discovery and pretrial proceedings will take place or to the timing of the process, the parties play an active role. Indeed, they ultimately determine who will preside over the proceeding. ADR allows the parties themselves a greater role in the presentation of their position and allows a direct avenue for participation that would otherwise be unavailable.

It is this degree of participation which often guides the parties in determining whether they want to utilize mediation or arbitration for their ADR. In mediation, the parties engage in frank, candid and open-ended sessions with the mediator, whose shuttle diplomacy skills are often the determinant of success. Mediation therefore provides the parties with a level of participation in the most user-friendly, and least intimidating, way. Arbitration, on the other hand, is the closest method of ADR to the traditional court system. Arbitrations are generally conducted following the pattern of in-court judicial resolution, tempered with some level of informality.

While there are variations in both mediation and arbitration options, these are the dominant models for ADR in popular use.

Q. What Is the Mediator's Role?

A. One must recognize from the outset that, while mediation is an integral part of the dispute resolution process, it is not adjudication. Adjudication connotes decision-making. Mediation is a process to achieve resolution.

The primary responsibility of a mediator is to help the parties resolve the dispute, so it is very different from the arbitration process. In arbitration, it is the arbitrator who actually makes the decision. However, it is the mediator's role to facilitate a process wherein the parties reach resolution of their dispute. The mediator must clearly understand his role and not superimpose his judgment on the parties or their issues. The mediator should bring about the result - not ordain it.

Q. Is a Mediator's Role Any Different When Dealing With a Medical Negligence Case?

A. The mediator needs to acknowledge the significant emotional issues that often permeate medical negligence cases. The medical professional is alleged to have committed malpractice; this is usually seen as a challenge to that person's professionalism, and sometimes even integrity. The patient complainant believes that he or she was personally harmed, and consequently often bears ill will against the alleged offender. Without a profound recognition of the presence of these issues, the mediator will likely be unable to bring the parties together.

The mediator in the medical negligence case, in order to be effective, must have good familiarity with the medical issues involved. Once the parties recognize that the mediator understands the medical issues but is also aware of the emotional overlay, his chances for bringing the parties to resolution are greatly enhanced.

Mediation can be particularly helpful in medical negligence because it gives the patient a forum to have his or her grievances aired in a less formal setting. Often the nature of the medical claim may involve details that the complainant would be uncomfortable sharing with a jury, in a courtroom with spectators. In the mediation forum, the patient has an opportunity to freely discuss his or her medical issues without the risk of the natural embarrassment that accompanies a public disclosure of physical problems.

There are many reasons why parties to medical malpractice actions choose mediation over litigation. Among them are more control over timing, discovery issues and the question of who will help them to reach an ultimate conclusion in their case. But making the decision to go with mediation over litigation is not the only important decision to be made: If the optimum outcome is to be achieved, the parties and the mediator should consider the following tips.

Appropriate Demeanor

The subject of proper demeanor during proceedings is most often brought up with relation to how the litigants should comport themselves. But it is axiomatic that the conduct of the mediator can set the tone for the entire mediation.

The parties are seeking the mediator's assistance because they are unable to resolve their dispute on their own. When the mediator makes it clear that he recognizes the importance of the matter and conducts himself accordingly, the parties have more confidence in the process. Some may believe that humor or informality at the beginning of the process is helpful; this is not the case. The parties need to understand that the mediator knows their dispute is a serious one, and the mediator should act accordingly.

The mediation process is one the parties have chosen, and that choice should be given the attention it deserves. Mediation may be an alternative to dispute adjudication by a court but it is no less valuable and should be no less meaningful. The demeanor of the mediator and his approach to the parties and the issues are the standard by which the proceeding will be measured by the participants.

Preparation

While every mediator has his or her own style, it is essential that the mediator be as familiar with the underlying issues as is possible. The issues presented in a medical negligence case are not within the common experience of most people.

In order for the mediator to be effective, he must demonstrate familiarity with medical principles in the case. This is not necessarily adversarial education. Some mediators may choose to receive non-partisan educational submissions from the parties; others may choose to do that background check themselves.

Clearly, at some point in the preparation, the mediator should receive from the parties an appropriate summary of the specific issues that comprise the basis for the dispute at hand. While the nature and format of the submission may vary among mediators, the goal remains the same: to be able to assist the parties to successfully bring their dispute to a conclusion. To do this, the mediator needs to become thoroughly familiar with the parties' respective positions. The mediator's level of preparation will soon become apparent to the litigants, and without their comfort with his level of familiarity, the session will unlikely be successful.

Being Successful

Location: While it is often imperative for the parties to meet with the mediator in the presence of the other side, it is also necessary for the mediator to sometimes meet with the parties outside each others' presence. A party will obviously be more willing to share candidly with the mediator if the opponent is not present. Thus, the mediator should establish a location for the mediation that will give ample opportunity for various types of meetings. In multi-party situations, there may be a need to keep all parties separate and allow the mediator to go from room to room. And there may be times when the mediator will choose to meet with some but not all of the parties. It is incumbent upon the mediator to ensure that the location chosen for the session has appropriate rooms to meet space requirements.

Attendees: Few responses are more frustrating to the mediator than the age-old refrain, "I don't have authority to make that decision." When a successful mediation begins to gain momentum and direction, derailing it as a result of inability of the decision-makers is inexcusable. The mediator should ensure in advance that the ultimate decision-makers are either present or available by telephone throughout the session.

Time Considerations: No one knows in advance whether the mediation will be successful, or how long it will take. Scheduling should be done generously, with any error to be on the side of allowing too much time. It is certainly better to have reached resolution well within the allotted time than to conclude unsuccessfully for lack of time. The mediator must insist the parties schedule the session with enough leeway to allow for successful resolution.

Conclusion

While medical malpractice mediators can use these tips to help facilitate a successful mediation, disputants and their legal representatives should also find them beneficial. To give the mediation a greater chance of success, the preparation and demeanor of counsel for the parties should mirror those of the mediator. As with the mediator, if counsel is not intimately familiar with the medical and legal issues, as well as any peculiar aspect of their client's personality and/or perspective, the likelihood of successful resolution in this forum is significantly reduced.

Moreover, counsel's disposition toward his or her opponents is of particular importance in the presence of his or her clients. Clients generally feed off of the attitudes and actions of their counsel. In order to achieve the goal of the mediation - resolution of the dispute - all participants should approach the process in a professional manner.

If all participants in the mediation follow these tips, their dispute will have a greater opportunity to be resolved short of the courthouse steps.

Reprinted with permission from the January and February 2013 edition of the Law Journal Newsletters© 2013 ALM media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.