Caldwell & Kearns, P.C.
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Medical malpractice mediation: considering some of the issues, P.2

In our last post, we began discussing some of the difficulties parties can face in medical malpractice mediation. As we noted, medical malpractice litigation can involve highly specialized knowledge and it is necessary not only for parties to establish a dialogue with each other that involves a mutual understanding about such matters, but which can also be understood and appreciated by the mediator.

While a mediator need not have firsthand experience in the medical profession, having a medical background can be helpful, as can experience handling medical malpractice litigation. Knowing what the parties will be facing should the mediation fail and they decide to take the dispute to court can help frame the negotiations in mediation, particularly in mediation styles which are more evaluative.

Another challenge in medical malpractice litigation is choosing how to present a medical malpractice mediation case in the context of mediation. This is important because the memo and exhibits provided to the mediator and the other party, with the medical information and knowledge they contain, can have a significantly variable effect depending on how they are presented and argued.

It is particularly important for a party to mediation to know the strengths and weaknesses of his or her own case before entering into mediation, as well as to have a clear idea about acceptable settlement figures. There is also the issue of navigating mediation privilege, under which communications and documents used in mediation may not be requested in the litigation process. Taking advantage of the privilege, while being aware of the potential risks involved in disclosure should the mediation fail, is also important.

A skilled, experienced and neutral mediator is essential to overcoming these and various other challenges in the mediation process, whether or not parties choose to work with their own attorneys.

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