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