The Role of the Mediator in Med-Mal Cases

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.

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.