Mediation is a structured process during which an impartial and neutral mediator facilitates negotiation between parties with adverse interests. The power to settle differences is with the parties and not the mediator. As your mediator, I do not decide what is “fair” or “right”, give an opinion on the merits of either side’s case, or assess blame. My role as mediator is to assist and guide the parties toward their own resolution by defining issues of disagreement, eliminating obstacles to communication, and seeking concessions from each side that move the parties toward a mutually agreeable resolution.
An opening session with all participants present is strongly encouraged. In the opening session, all sides will be given the opportunity to make opening remarks without interruption. If one party wants an opening, there will be an opening.
My conduct as a mediator is governed by Texas Civil Practice and Remedies Code Section 154.053 which requires me to “encourage and assist the parties in reaching a settlement of their dispute but may not compel or coerce the parties to enter into a settlement agreement.” When we break out into individual rooms, we will discuss and analyze your strengths and weaknesses in confidence. Unless expressly authorized by the disclosing party, I, as the mediator “may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute.” Unless the parties agree otherwise, “all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.”
Resolving Medical Malpractice Claims through Mediation
Unlike any other personal injury case, medical malpractice cases are personal because there is often a feeling of a betrayal of trust. The healthcare provider thought he had a good relationship with the patient who has now turned on him. The patient trusted the healthcare provider to provide the best care and treatment and now the goals, plans, and dreams of tomorrow are suddenly threatened. Medical malpractice claims are extremely emotional, heart-wrenching experiences for both the healthcare provider and the patient.
After a medical malpractice claim is filed, the healthcare provider and patient have things that they would like to tell the other. The healthcare provider wants to explain that she did her best and that the outcome is not what either had expected. The healthcare provider may even want to say she is sorry that the patient is not well and express compassion for the pain the patient and his family are suffering without admitting negligence. The patient wants to tell the healthcare provider how devastating the injury and loss have been to him and his family. The patient wants to know what the healthcare provider will do to make certain that this never happens to anyone else. Once a claim is filed, instead of having an opportunity to talk, the healthcare provider and patient are instructed not to speak to the other or anyone else about the claim. The litigation process discourages communications other than those between the parties’ lawyers. The only communication is in the form of answers to questions in interrogatories and depositions. There is testimony but no talk.
In mediation, there is talk but no testimony. All sides are given the opportunity to tell their side of the story and, most importantly, to listen to the other side of the story. Lawyers can do all or part of the talking or parties can do all or part of the storytelling. This is not an examination or cross-examination under oath but rather an opportunity to communicate. As the mediator, it is my responsibility to make certain that all sides are given the opportunity to speak their mind freely and without interruption. I firmly believe that where there is conflict, whether between individuals or countries, communication is the key to resolution.
Addressing Fears and Concerns
During the private breakout sessions, we will discuss candidly and confidentially the fears and concerns that each party has about settlement and trial. Openly addressing our fears and concerns provides an opportunity to weigh the risks and benefits of both options. Recognition of these risks and benefits gives the parties the power to make an informed decision concerning settlement versus trial by jury.
In discussions with his lawyer and mediator, the healthcare provider will be able to address any fears and concerns he may have regarding the claim. For example, confidentiality is a very important interest for the healthcare provider. While the National Practitioner Data Bank and the rules of the Texas Medical Board make it difficult to assure total confidentiality, with mediation, there are certain aspects of the matter that can be kept private and out of the newspaper and social media. On the other hand, once a case goes to trial, the case becomes a matter of public record, and details of it are readily accessible. An agreement to settle is not an admission to the National Practitioner Data Bank and Texas Medical Board of negligence by the healthcare provider. The formal settlement agreement will include the stipulation that by agreeing to settle, the healthcare provider does not admit negligence but specifically denies negligence. On the other hand, a jury finding of negligence on the part of the healthcare provider will be reported to both the National Practitioner Data Bank and the Texas Medical Board.
In discussions with her lawyer and mediator, the patient will be able to address any fears or concerns she may have regarding the claim. She may believe that she has a case that cannot be lost and that the verdict and judgment will be substantial. Discussions will focus on the stress of going to trial and being subject to cross-examination, the strengths and weaknesses of both sides’ experts, the questions the jury must answer based on the burden of proof, jury nullification, and the very real risk of losing, the potential of an appeal and reversal if the jury verdict is favorable, and the avoidance of all the risk by accepting a reasonable settlement offer.