Mediation is a powerful tool to resolve complex disputes before a case escalates to trial. Medical malpractice mediation has emerged as a preferred method for both plaintiffs and defendants, allowing them to address claims while avoiding the unpredictability of courtroom verdicts. 

For defense attorneys representing healthcare professionals and institutions, understanding how to approach mediation effectively is critical to achieving the best outcomes. 

How can defense teams get the most favorable and reasonable outcomes in mediation? 

Gathering information, outlining a strong defense, and ensuring the client is emotionally prepared are key parts of the preparation. Pre-mediation conferences and close collaboration with a mediator help frame the case as a problem to solve rather than a personal attack, guiding the process toward resolution. By following these three steps, defense teams can achieve the most favorable outcomes in mediation:

➔ prepare early

➔ conduct an accurate case assessment

➔ manage client expectations ahead of time

The Importance of a Thorough Case Assessment

One of the fundamental aspects of preparing for medical malpractice mediation is a thorough case assessment. Defense attorneys must assess the case early, ideally within the first 90 to 120 days, to accurately understand its strengths, weaknesses, and potential value. 

Unfortunately, as seen in many cases, defense teams often enter mediation without a complete or accurate assessment of the case’s value. When plaintiffs’ attorneys have done their homework and the defense team has not, mediation can become an uphill battle for the defense.

Accurate case assessment involves looking at the extent of the alleged injury and the specific actions of the defendant's healthcare providers. This requires a deep dive into: 

➔ medical records

➔ expert testimonies

➔ relevant precedents 

The defense team can approach mediation with a clear and informed strategy when the defense ensures they have all the information they need, including knowledge of possible jury reactions and comparable rulings in the area.

Managing the Client's Expectations

Doctors, nurses, and hospital administrators often have strong emotional reactions to being accused of medical malpractice. For many healthcare providers, their professional reputation is their most valuable asset. When their competence is questioned, it can lead to strong defensive instincts, which complicates mediation. 

Defendants in medical malpractice cases are typically intelligent, high-achieving individuals who are not used to feeling vulnerable. These characteristics can significantly influence their openness to settlement options. Therefore, it is essential for defense attorneys to manage their clients’ expectations prior to mediation. This preparation should include discussions about the possibility that settling might be the most prudent course of action, even if the defendants firmly believe they have done nothing wrong.

Witness preparation is essential. Defendants must be ready to hear difficult allegations, including claims that they caused significant harm or even death. If the defendant's healthcare professionals are not emotionally prepared for these allegations, it can impact deposition performance, hinder productive strategy discussions, and prolong, or even derail, the mediation process.

The Role of Emotion in Medical Malpractice Mediation

While some may view civil cases as “just about money,” medical malpractice claims are often deeply emotional for both sides. Plaintiffs might have suffered life-altering injuries or lost a loved one, while defendants may feel personally attacked. These common emotional undercurrents can prove to be one of the biggest challenges in the mediation process.

For defense attorneys, acknowledging the emotional aspect of the case is crucial. This doesn’t mean conceding guilt, but it does mean being empathetic and prepared to handle an emotional environment. 

Mediators often advise defense counsel to help reframe the case as a problem to be solved rather than a personal attack on the healthcare provider. By focusing on addressing the issue at hand, rather than assigning blame, the defense team can shift the conversation toward resolution.

Pre-mediation Conferences Offer a Strategic Advantage

Pre-mediation conferences can raise the likelihood of success in medical malpractice mediation. Prior to official mediation, these conferences give the mediator, defense counsel, and plaintiff's attorney a chance to talk over the matter. This is an opportunity the defense team can use to challenge the plaintiff’s position, present key defenses, and set the stage for productive discussions. 

A pre-mediation conference gives the mediator the opportunity to get to know the parties engaged in the mediation, especially the defendant healthcare practitioner. A professional, experienced litigation mediator can use this information to defuse tension during mediation and help both parties focus on resolving the case rather than engaging in a prolonged battle.

Preparing the Mediator for Success

One of the most effective ways for medical malpractice defense teams to approach mediation is by thoroughly preparing the mediator. Mediators are neutral parties, but they rely on the information provided to them by both sides. 

The defense team can help the mediator steer the process toward a favorable outcome by presenting a clear and well-structured defense strategy. Attorneys should supply the mediator with pertinent case law, comparable verdicts from similar cases, and essential facts that underpin the defense. 

In medical malpractice cases, the mediator will also benefit from understanding the intricacies of the medical field. If the mediator has experience in medical malpractice cases, this can be a significant advantage, as they will be more familiar with the medical terminology and standards of care at the heart of these types of cases.

The Impact of Deposition Testimony

Mediation can be significantly affected by deposition testimony, especially when it comes from the defendant's medical professional.

If the plaintiff’s attorney successfully undermined the defendant's credibility during a deposition, it can shift the leverage in mediation. A poorly handled deposition may give the impression that the defendant is untrustworthy or uncaring, which can make it difficult for the defense to negotiate a favorable settlement.

Defense attorneys need to ensure that their clients are thoroughly prepared for depositions, both in terms of the factual content and the demeanor they project. 

Healthcare providers must project competence, compassion, and confidence in their actions. For instance, a video deposition that depicts a doctor as unprepared or evasive can significantly undermine their position during mediation.

A Unified Front When Handling Multiple Defendants

Numerous parties, including physicians, nurses, and the hospital, are cited as defendants in medical malpractice proceedings. Due to varying viewpoints on liability and settlement, this can create additional challenges during mediation. In cases where there are multiple defendants and/or fact witnesses, parties can fall victim to blaming one another for mistakes made, which can cause confusion and undermine the defense as a whole.

During the mediation process, defense attorneys need to present a united front. Even though each defendant or fact witness may have unique worries, it's critical to keep internal disputes to a minimum and concentrate on resolving the case as a whole. A good practice for defense attorneys to keep in mind before entering the mediation room is—if required—to have separate conversations with the mediator and discuss any concerns between the defendants.

A Proactive Approach to Medical Malpractice Mediation with Courtroom Sciences

Medical malpractice mediation offers defense teams a valuable opportunity to resolve cases before they go to trial. However, success in mediation requires preparation and strategic planning. Working with litigation consulting experts and psychology professionals helps attorneys properly prepare their witnesses for deposition and conduct jury research to be used at mediation to achieve a successful resolution. 

Attorneys can maximize their chances of securing a favorable outcome by ensuring the mediator is fully informed and equipped to handle the complexities of the case. With the right guidance, medical malpractice mediation can be a powerful tool for achieving a fair and reasonable settlement for all parties involved.

Courtroom Sciences helps attorneys efficiently navigate litigation by providing psychological expertise, science-backed data, and expert support for all phases of litigation. Learn how CSI's litigation consulting experts can improve outcomes for your next case. Speak with one of our experts to get started.

Key Takeaways:

●  Conduct an early, accurate case assessment to understand the case's strengths, weaknesses, and potential value.

●  Prepare healthcare providers for the emotional challenges of mediation and the possibility of settling even when they believe they did nothing wrong.

●  Attorneys must recognize the emotional aspect of medical malpractice cases and reframe the issue as a problem to be solved rather than a personal attack.

●  Remember to use pre-mediation conferences to challenge the plaintiff's position, set the stage for discussions, and clarify the defense strategy prior to mediation.

●  Ensure defendants are well-prepared for depositions – poor testimony can drastically shift mediation leverage.

●  To strengthen mediation outcomes, remember to minimize internal conflicts among multiple defendants and present a united defense.