What is a mediation and will it settle my medical malpractice case?
One of the primary purposes of a medical malpractice claim or lawsuit is to reach a settlement that results in a fair outcome and fair amount of money to make up for the harms and losses caused by the medical negligence.
Mediation is a process that helps the parties to a medical malpractice lawsuit or claim reach a settlement. The process of mediation involves the use of an independent mediator to help bring about a settlement.
The mediator can be anybody but is typically an attorney or retired judge. The mediator is entirely independent of the lawsuit and has nothing to do with either side of the case. The mediator’s sole job, which they are paid for, is to help the parties reach a settlement. Mediators do not decide the case or make a decision for one side or the other.
Why are mediations used to help settle medical malpractice lawsuits?
While a lawsuit can settle at any time in a variety of ways, mediation is often used when there are significant differences in how the plaintiff and defendant view the strength of the case and/or the extent of the damages and thus the value of the claim.
Where is the mediation held?
Historically, mediations were always conducted in person. The plaintiff, the plaintiff’s lawyer, the defense lawyer and the defense insurance representative would travel to a law office or the offices of a mediator and meet in person for the mediation.
Since the coronavirus pandemic mediations are frequently conducted virtually via zoom or other video meeting platform. Whether your mediation is conducted in person versus virtually depends on several factors. In our experience there are pros and cons with in-person and virtual mediations. You should discuss the benefits and drawbacks with your lawyer.
What happens before the mediation? Submitting a demand to the defendant.
The mediation process begins with the plaintiff’s lawyer submitting a settlement proposal to the defendant. Typically, your lawyer will create a settlement statement that outlines the facts, best evidence, and arguments of your case, which demonstrate why you as the injured patient or plaintiff should and will win your case. Your lawyer will explain the extensive financial and personal harm that has been caused by the negligence of the defendant and explain why the degree of damages in the case corresponds with a certain amount of money.
In our experience, the settlement demand, while an estimate, is based on what we as medical malpractice lawyers believe a jury might award were the case to go to trial.
How much your medical malpractice case is worth, how much it should settle for, or how big the demand for settlement should be are complicated questions that are addressed in other articles on our website. How much your case is worth specifically is also entirely dependent upon the facts of your case. In short, how much you should demand and how much you case may be worth are issues you should discuss at length with your lawyer.
Once your lawyer submits a settlement proposal to the defendant, the other side will evaluate the claims, the damages, and the settlement demand amount and determine whether they would rather attempt to settle the claim out of court or go to trial. It is always important to keep in mind that you and your lawyer cannot force the defendant to settle your case. If the defendant refuses to offer fair money or any money to settle your case, your only option is to go to trial and have a jury and judge say what the defendant must pay.
What happens before the mediation? Selecting a mediator and the mediation statement.
In situations where the defendant recognizes their fault and or the value of your claim, they will often propose mediation.
The next step at this point involves the attorneys for both sides discussing and deciding upon the appropriate mediator to preside over the mediation of your case.
Once a mediator is selected, a mediation will be scheduled, and your lawyer will prepare a mediation statement for the mediator that provides an overview of the case.
In our experience, it is important for the attorney for the plaintiff to provide the mediator a candid assessment of the case. While we are of the position that we wish to present the strongest case possible to the defendant, we believe there is a benefit for the mediator to understand both the strengths and potential weaknesses of our claim and the defendants. We are open and honest with the mediator because in our experience this allows the mediator to have all of the tools at their disposal to help settle your claim. It also lets the mediator know that we are reasonable, rationale, and committed to the process.
Will the outcome of my case be decided at mediation?
There are two important points to understand about the mediation generally. First, it is not a court proceeding and does not have the same weight from an evidence and testimony standpoint as does a court hearing or a jury trial. What you say at the mediation will be confidential and cannot be used for or against you at trial. There will not be any testimony taken and there will not be a “ruling” like there would be in court.
Second, there is no guarantee or requirement that your case must or will settle at the mediation. With this in mind, we recommend our clients approach mediation with cautious optimism. So as not to set your expectations too high which could lead to a poor decision, we think it best for the plaintiff in a mediation to anticipate that the case will not settle at the mediation. You must be prepared to walk to protect yourself from taking an inadequate settlement out of desperation. But we also encourage the patients we represent to keep an open mind and not draw lines in the sand on a minimum amount their case must settle for.
How is mediation different from a court proceeding?
Another, idea to keep in mind about mediation is that in certain circumstances it can provide more to the injured patient, or their family than can a jury verdict. The best a jury verdict will ever be is an amount of money that a jury believes accurately represents the harms and losses sustained by the plaintiff in the lawsuit.
On the other hand, through mediation, it is sometimes possible in addition to money, to secure agreements or concessions from the defendant otherwise unavailable through a jury verdict.
For example, we have been involved in settlements and mediations whereas part of the settlement the defendant agreed to change an important policy or put in place a procedure or protocol designed to prevent similar injuries in the future. If there is a very important behavioral issue that you feel strongly about and wish to have changed, you should discuss this with your lawyer and see whether it may be possible to gain the defendants agreement to make the change as part of the settlement agreement.
How long does mediation take and what should you do to prepare?
Mediations themselves typically take several hours. Sometimes they take half a day, sometimes they take the entire day, and sometimes the mediation process can go on for days or weeks after the scheduled date.
On the day of your mediation, you should prepare for the process to be a bit stressful, tedious, and boring. There will be large stretches of time where everyone is just sitting around while the mediator shuttles back and forth delivering messages, updating the parties on the demand and offer, and helping each side better understand the risks involved with not settling.
You should dress professionally with the intention of making the best impression and appearance you can. This has an important impact on both the mediator and the defendants. The better you look, and the better impression you are anticipated to make to a jury, the more the defendant will be concerned that a jury will like you and want to find in your favor.
What should you expect and do at your medical malpractice mediation?
At the mediation, you should listen to the mediator closely. While your lawyer will hopefully have discussed with you at length the mediation process, what it entails, and what to expect, the mediator is the real professional at conducting the process and will have a lot of important information for you to consider and think about.
One of the most important jobs of the mediator is to help both sides, plaintiff and defense, understand the serious risks they face by not settling their case. In most mediations you will hear from the mediator about the uncertainty and risks associated with going to trial. The mediator will explain about how long the case may take to resolve if you do not settle the case at or near the time of the mediation.
The mediator after initially meeting in speaking with you, will go and speak with the defendant to learn their position in response to your settlement demand. Typically, it will take the mediator some time to speak with the defendant and the representatives to hear their settlement offer as well as their view and rationale about settlement of the case.
Sometimes it can feel like the mediator is against you. This is normal and a sign that the mediator is doing their job. By pointing out the issues with your case, the mediator is helping you see the risks associated with your case to help you make the best decision. You should know that any mediator worth their salt is hammering the defense just as much as they are working on you to see both the strengths and weaknesses of the claims and defenses. And never forget that there is always a risk of a bad outcome if your case is tried to a jury. A settlement through mediation eliminates the risk of getting less or nothing.
When mediations first came into Vogue, they typically started with elaborate presentations by the plaintiff and defense. The plaintiff lawyer would stand up in front of everybody at the mediation and explain why the defendant was going to lose for a lot of money. On the other hand, the defendants would then stand up and tell the plaintive how bad their case was. It was found by mediators over time that this was a very counterproductive approach to mediation. While you may be expecting your lawyer to give the equivalent of an opening statement at your mediation, it is unlikely to happen these days. Instead, at most, you may meet briefly the defense lawyer and defendant’s representative. You will then be moved into your own room whether that’s a physical room or your own virtual room where the mediator will talk with you and your lawyer.
Often, the mediator will ask to speak with your lawyer privately. while this may seem suspicious, there is good reason for this. First, the mediator is often communicating information to your lawyer that may be hurtful or inflammatory to you. Because the mediator is trying to bring about a settlement, they want to avoid offending or angering you. Second, the mediator may have questions about certain aspects of your case that are best answered by your lawyer – for example unique legal issues in the case or medical lien issues.
What should you do during your medical malpractice mediation?
During the mediation, you should listen to and trust the recommendations of your attorney. Remember, that you and your lawyer are partners in your case. The more money that you receive from a settlement, the more money your lawyer and their law firm will make.
Similarly, if your lawyer believes justly that your chances of winning at trial are less than what is being offered in settlement your lawyer has a duty to explain their professional opinion to you so that you understand the risks of rejecting the defendant’s settlement offer (even if the money offered is not as much as you had hoped). We point this out to remind injured patients that your attorney has your best interest in mind and has a vested interest in the outcome.
Sometimes your lawyer will have to share tough news with you about your case, or the strength of your claim or extent which your damages can be related to the malpractice. Given what you have been through, this can be hard to hear at times and some patients understandably worry that their lawyer is not on their side. But any good plaintiff lawyer is going to be brutally honest with their client because it does you no good to just hear the good parts of your case or be misled about your chances at trial. Your lawyer and the mediator are there to provide you all the information, good and bad, that you need to make the best decision regarding whether to settle your claim or go to trial.
You should also trust your lawyer if they recommend that you decline the settlement offer being made by the defendant. Many injured people, simply want the litigation process to be over. Other times, the amount of money seems like a lot but in truth is not representative of the full value of what has been taken from you in the way of damages and losses. Your lawyer will make recommendations in your best interest to try to get you the best outcome and you should listen to them. Sometimes from a negotiation perspective it is best to say “no” to what is being offered. If your lawyer recommends ending the mediation and moving forward with litigation and moving the case closer to trial, you should listen to them.
With all this said, the decision to settle or go to trial always belongs to you, the client. As long as you listen to your lawyer’s recommendations, and the reasons therefore, you are always entitled to make the decision that you feel is in your and your family’s best interest.
We also recommend that our clients heading into mediation be mindful that mediations typically take time and patience is very important. With all of the time that you will spend sitting around waiting for additional information or offers from the other side, it is understandable that you will become impatient with the process. But we recommend that you always see the entire mediation process through in order to have as much information available to you to make the best decision about what to do with your claim.
What should you think about if your medical malpractice case settles at mediation?
If during the mediation it appears that you are close to reaching a settlement, there are a few important final pieces of information to keep in mind. First, if you have an interest, you should talk to your lawyer about structuring a portion of your settlement in a personal injury annuity. The reason you should discuss this possibility before settlement is that it typically must be part of the settlement terms. Often times defendants refuse to agree to allow you to put all or a portion of your settlement money in a structure after an agreement has been reached. Additionally, there Is specific language that must be included in the release agreement for the structured annuity to provide you tax free income in the future.
Another small but important point to keep in mind just before your case settles at mediation is to request that the defendant or the defendant’s insurance carrier pay for the entire cost of the mediation. When you head to mediation, both sides agree to pay the mediator for their time. Mediators typically bill their time at a high hourly rate usually in the many hundreds of dollars per hour. If your mediation takes many hours or days to complete, the bill owed to the mediator can be significant, typically in the several thousand-dollar range. In our experience when a claim is close to being settled, it is not unusual for the defendant to also agree to cover the costs of the mediation. This will save you a few thousand dollars on your bottom line.
What happens after you settle your medical malpractice lawsuit at mediation?
If your medical malpractice claim reaches a settlement at or around the time of mediation, the mediator will document the terms of the agreement. Following the mediation, the defendant lawyer will draft the settlement agreement. This agreement is called a release because in exchange for the money and terms that the defendant has offered, you are agreeing to release or give up all of your legal claims against the defendant. Once you sign this agreement, your case is over.
Typically, you can expect to get a settlement release within a week or two following the mediation. Make sure you and your lawyer closely review the terms of the release before signing anything. It is not unusual for there to be significant mistakes in the release agreement.
Once you sign and return the settlement agreement, the defendant usually has thirty days within which to issue your settlement check. In our experience, you can expect to receive your settlement check within 2 to 3 weeks of returning to the defendant a signed an executed settlement release agreement.
Once you receive your money and the case is concluded, your lawyer will notify the court that your case has been settled and your lawsuit will be discontinued.
While medical malpractice and personal injury settlement are generally considered non-taxable income by the IRS, you should always confirm with your lawyer that there are no tax implications for your settlement.
We hope this article about the medical malpractice mediation process is helpful to you. But we also recognize that this article is not exhaustive and there are many other great resources for you to read or learn from to better understand the nuts and bolts of mediation. We encourage you to read as much as you can but always first speak with and consult your lawyer about the process.