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Mediating the Medical Negligence Matter: Ten Major Differences. Part II: “The Next Five”.

August 14, 2012

Mediating a medical negligence injury claim is simply different.

In “Mediating the Medical Negligence Matter:  Ten Major Differences.  Part I: The First Five“,  (August 3, 2012) , we examined five of my foreseeable ten major differences between mediating any other personal injury case and one sounding in medical negligence. My first five included in Part I:  1) These mediations are used for everything except resolution 2) There are profound differences in timing these mediations 3) The only negotiation factor being considered is the likely outcome at trial  4)  Your best case must be fully supported and “in the file” of your opposition well prior to mediation and 5) Your entire time at mediation should be invested in reason and negotiation, not rhetoric.

There are at least five more major differences for you to consider.  In this Part II, I thus continue with the  numbering from my earlier article for continuity.

Sixth,  the actual parties play only a “barely ethical” part of the negotiation.

In any mediation, it is intended that only the parties will make the final decisions.  This is NOT (practically) true in medical negligence mediations!

On the Plaintiff’s side,  realistically only the plaintiff’s attorney will ultimately decide to resolve the matter or not.   Perhaps not totally ethical, but true, nevertheless.

These matters are so expensive and so technical that it is highly questionable that any  injured lay-party even can make the final decision.  And, of course, emotion and anger are affecting a parties judgment.  If the offer is insufficient to cover the costs and risks of the Plaintiff’s attorney, largely that attorney will have little choice but to try the matter.  One benefit to any claimant because of the contingency fee contract commonly used for such matters is the lack of concern over attorneys fees.  But, ironically, due to the same too-short statute of limitations held so dear by the medical profession, it is also almost impossible for any claimant’s attorney to withdraw.  In short, there is really no other choice but to progress to a verdict if given no option.

On the other extreme, for many of the same reason once a defendant’s offer is considered sufficient to be considered, “fair” to the claimant and then beyond a certain acceptable zone of risk for trial, it, again, will be most likely the Plaintiff’s attorney who will deicide that “enough is enough”.

It is the Plaintiff’s attorney who most understands the risk of any jury trial.  And, after all, it is usually the attorney’s money (and a large amount of time) at real risk.   And, it would be most unusual for any client to overrule their own counsel.  They likely had few attorneys who would even agree to represent them.  And, most claimants will trust their attorneys who, by that time (years!), likely have “bonded” with them by their sustained joining in the pursuit.

Similarly, for the Defense, and assuming an insurance carrier (few cases are pursued without one), under Florida law and most Florida professional insurance policies, no party-insured can either insist upon settlement nor upon trial.  Accordingly, once again, it will be someone other than the defendant-party deciding; almost always, the defendant’s insurance carrier.  Legally and practically, defendants have little choice.  Again, perhaps not ethical, but true.

In the end,  and certainly for mediation purposes, ultimately the one called upon to actually pay to the party that prevailed or to bear the economic loss should they not, will be the only one(s) really in charge of the final decision-making.

Number seven.  Neither side can ever achieve “full value” in resolution.

Statistically, the odds of winning and losing such matters are so heavily skewed, actually or in the minds of those who work repetitively in this narrow field, that even if the sides could agree upon the final value of any future jury verdict, the side with belief in their stronger case would always require a substantial discount (or bonus) of /to that presumptively “known” future verdict!

Likely this is another reason that most medical negligence trials settle after mediation.  Until the last-minute, there is still that unspoken belief that “things will still change” to the benefit of the “stronger” side.

Many such matters are settled the weekend before a trial is to begin (another uncertainty as so many such matters are continued, multiple times).  Many are settled only after the jury is visualized.  Another large group are settled due to daily offers that increase (or demands that decrease) as the parties daily evaluate the trial’s progress.  And, still another few are often still wrangling for a last-minute settlement  while the jury is literally deciding their fate for them.

In short, everyone wants to wait until the last to find every possible basis upon which they can justify, to others,  a voluntary resolution without testing what a given jury will actually do.

And, because all medical negligence resolutions are predictably always late, the ultimate net financial recovery to any prevailing party is predictably highly reduced by the unavoidable extra expense of the process, in money and emotion.

The fees of the attorneys, the costs in time and money that now must be deducted to arrive at the net to be recovered,  thus make every final resolution actually “insufficient”.  And because of the likely permanency of the injuries in such cases, the lifetime future impact and the emotion of the lengthy journey to resolution, it is the usual belief by all that “enough” is never really enough, regardless of who prevails.

Eighth.  “Intangibles”  matter more at these unique mediations than others.

If your opposition does not believe you will prevail before mediation, generally you are not going to change their mind at mediation.  See above.

On the other hand, if offers are to be made because the defense has pre-determined some exposure by trial, there are likely quite different factors being evaluated.  And, time spent upon these matters can count.

By this time, unlike most other personal injury claims,  it is not likely that fact or law drive your mediation, but “intangibles” still to be evaluated and carefully considered.  And they are extremely important to the decision-makers and every final decision made before closing negotiations.

Those intangible factors that now drive the negotiation in these unique cases  include:  1)  a “beauty contest” of anticipated jury acceptance  between the Plaintiff(s) and the Defendant(s); which side will be the better “liked”  2)  critical comparison of track records and demonstrated ability of  opposing counsel; not simply trial results, but preparation and skill as assessed by opposing counsel  3) contests between credentials and opinions of directly opposing experts  4)  common sense understandably of factual and professional complaints or defenses  and, 5) the potential of inflammatory issues arising at trial.

Inflammatory issues include:  1) the perceived degree (or lack) of claimant injury and future damages  2)  the age and gender of the claimant(s) or the defendant(s)   3) potential demeanor issues of any party or their counsel at trial, and  4)  party character issues anticipated to become useful at trial.

Many attorneys  also believe that race and ethnicity, particularly in some regions, are also a predictable factor that governs any outcome regardless of merit of fact or law.

Although “lightning can always strike in a bottle”, both sides will be predicting outcome by, among other matters, the history and ability of the opposing counsel and the intangibles of each case more than the objective evaluation of the case merits.

Such intangibles are important in any mediation, but are much more determinative in medical negligence matters where any “edge” may be the tipping point of resolution versus trial.

Ninth, mediation should be of a very short duration, but usually is not!

As mentioned above, because these matters are usually well determined in advance, you would think the formal mediation would be short.

However, as often there are multiple parties and certainly multiple competing interests that must be concurrently served, participants must be prepared (and patient) for, practically, a more prolonged session.

These matters  usually have multiple defendants.  Multiple defendants have multiple counsel.  Multiple defendants have multiple carriers with multiple insurance professionals.

Some defendants will be repetitive defendants.  Some will have never been sued.  Both subjects  for lengthy discussion.

Many of the plaintiffs’ counsel will have had multiple confrontations with at least some of the counsel and perhaps some of the insurance personnel.  All will have perspectives that are unique to themselves and their histories beyond the present matter, including with opposing counsel or opposing insurance carriers.

Anytime matters outside the merits of the particular cause are in play, the complexity of negotiation and even goals of the parties become blurred.  And, thus require time.

Many of the issues that arise in mediation in these matters arise for only the first time even though well-known before.  Conflicts amongst defendants, amongst counsel, amongst insured and insurer and others, although already existing,  almost never rear their head until mediation.   Another need for time to include in any global resolution.

And, in some matters, one side or the other may simply be intending to use mediation to “make a point” for a past transgression or for future reference.  A difficulty that is no small issue for any mediator!

It is thus, practically, rare for any medical negligence matter to be of a short duration, regardless whether ultimately to be resolved or not!

And, Number ten.  There is no middle ground;  the case will eventually settle or it will be tried.

The decision for resolution or not is quite unilateral to the defendants.

However, any mediation effort, other than defense offers to settle that permit settlement,  is a waste of time.    Neither side is going to quit., or as shown above, likely can!

And, the injured party, of course, will be making no offer to the defendant(s).  Accordingly, the defendant parties to such cases either come to mediation to resolve the matter well beyond “defense cost” or the matter will be tried.

The defendants will know, at mediation, of the reasonable future verdict range.  The defendants will know of the likely attorneys fees and costs, and all liens and bills to be paid before any injured plaintiff will receive a penny.  Thus, token offers that leave nothing for the injured party are a known waste of time as they simply do not even permit resolution.

And, in those rare cases where the defense wishes to avoid trial, ultimate (and hopefully rapid) movement to a reasonable offer is critical to any chance of success.  It is the only means to counter-act the negative feelings of the injured plaintiff and move them to the neutral, if not positive feelings needed to resolve such a matter.

Additionally,  the corollary to it not being useful for any Plaintiff attorney to undertake a weak case, is that if the Defense believes they may likely not prevail, because such cases almost always involve catastrophic injury or death (to justify the expense and risk), than not moving aggressively to their “best offer” short of trial, is equally a defendant’s waste of everyone’s time in mediation.

Unlike almost every other personal injury matter, few attorneys “dabble” in these matters.  And, those that do accept representation of an allegedly injured Plaintiff, accept them only with significant and permanent injuries and damages that would almost always be of the “six figure”  verdict value (or over) nature, if liability or responsibility for the injuries is found by the fact-finder.

And, the out-of-pocket “investment” that is required in such matters that foreseeably are  likely to be tried, can be also of the nearly same “six-figure” range.  This investment, coupled with the required expert already in-hand required to foreseeably (and predictably) be allowed to reach a jury, if not settled, make “token” defense cost offers useless.

Simply stated, the Plaintiff and the Plaintiff’s counsel previously considered and accepted the cost and risk of having to try the case before the representation was even accepted.

Accordingly, unless the Plaintiff is “permitted” a resolution by an ultimate offer that allows resolution, there can never be a resolution!

A surprise “bonus”: number eleven.   You can never be a failure if your mediation does not resolve your medical negligence dispute.

Few medical negligence matters resolve at mediation.  And, likely, anyone experienced in these matters is really not even expecting resolution at mediation!

There are simply major differences between mediation of a medical negligence matter and any other personal injury claim mediation.

You, however, can still profit from knowing these differences, in  advance , and using the mediation process for other benefits to your advantage.

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