The Role of the Mediator in Med Mal Cases

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.

Roseann Lynn Brenner, a member of this newsletter's Board of Editors, is a partner in Philadelphia's Goldfein and Joseph, PC.

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.

Roseann Lynn Brenner, a member of this newsletter's Board of Editors, is a partner in Philadelphia's Goldfein and Joseph, PC.