Publications - Medical Malpractice: Mediation & Arbitration

Medical providers, insurance companies and litigants are finding that mediation can be a better solution to their disputes than litigation.

There is no doubt that there is a healthcare crisis in America caused, at least in part, by lawsuits and the growing costs associated with them. More than one-half of the medical malpractice cases that go to trial have verdicts that exceed $1,000,000.00.

Healthcare providers, insurers, and patients who feel they were harmed from negligence of a healthcare provider are turning to mediation to resolve their conflicts. In fact, many healthcare providers are including pre-dispute mediation or arbitration clauses in their contracts.

In mediation, parties have control over the outcome of their case. The uncertainty the partiesí face with a jury trial is simply not present.

Mediation provides a place where the patient and the healthcare provider can speak freely to one another in complete confidence. Many times, the patients are not looking for money. They are looking for a heart-felt apology. Some patients are looking for a sign that their complaint will make a difference in the delivery of healthcare in the future.

Mediation presents the best opportunity for a physicians, or a hospital or clinic, to offer an apology, or to explain how the patientís complaint made a difference. Information discussed during mediation proceedings is confidential by law and, at the outset, by agreement of the parties. Without the confidentiality provided by mediation, physicians and healthcare provides are understandably hesitant to offer apologies due to the fear than an apology will be taken as an admission of error and will either precipitate a lawsuit or encourage the plaintiff to continue with a lawsuit. Confidentiality in mediation ensures that parties cannot introduce information discussed in mediation during subsequent proceedings. This is guaranteed by the California Evidence Code.

The Procedure
In mediation proceedings, the parties each come with their attorney, if they have one, and attempt to negotiate a resolution of their conflict with the assistance of a neutral third party.

The procedure used at the mediation can, and should, be specifically designed to the particular conflict. There are no rules governing procedures chosen to mediate the conflict. The mediator can suggest the procedure as can the parties.

Many mediations begin with a joint session, which includes the mediator, the parties and their attorneys. In this session, the parties, can recite the facts of the conflict and their positions to the extent they wish to reveal them to the other side. The joint session can be modified, or dispensed with altogether. If the parties believe that the joint session statements will encourage acrimony then the joint session can be dispensed with altogether, or convened after the parties have had an opportunity to caucus separately with the mediator.

Typically, the mediation will involve separating the parties, at some point, where they will caucus with the mediator and use the mediator to relay their various offers and counter offers. Parties do not have to meet separately. Depending on the nature of the dispute, it may be important to the parties to resolve their issues together.

There Are No Losers
No one loses in mediation. The parties decide, with the neutralís assistance, how their matter will be resolved. In the unlikely event of impasse, the parties are free to pursue the litigation process having lost nothing along the way. Further, parties that have gone through mediation are much more likely to settle their case even if at mediation there was impasse. The process itself helps the parties to get on the settlement pathway by getting them talking and looking for common ground.

When you are ready to say and hear ďletís shake on it,Ē call or email Patricia Tweedy, Sacramento Mediator.

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