Perceived barriers to settlement,
and how to use Mediation in Medical Negligence cases
Mediation in medical negligence cases will enable the resolution of disputes in a more timely, confidential and economical manner than the current system which places huge burdens – personal, psychological and economic – on all of the parties involved.
For a plaintiff mediation provides a method of resolution that has less risk and can provide satisfaction within a period of time that such satisfaction has real meaning. For the plaintiff’s legal team the case moves and often provides the best chance to work out a structured settlement while those non-monetary matters – like explanations and apologies – that can enhance the real value of a settlement are still meaningful to their client.
A defendant doctor or consultant can spend years being virtually terrorized by the threat of public embarrassment, professional ostracism, and financial ruin. He is frequently most anxious to give that explanation and apologise that the plaintiff suffered harm – even if not admitting that he caused the harm, just stating the truth that he is sorry that the plaintiff suffered it.
What happens, however, is that the defendant and his insurance company, his employer and their insurance company and any other involved medical personnel and their insurance companies take up entrenched denial matrices between themselves. Thus, usually the first part of a mediation will be between the different defendants. If the defendants can agree on a reasonable range figure – before they go into battle between themselves on apportioning the liability – then whether or not the Plaintiff is willing to move into that range can be explored. If the plaintiff’s expectations are within that range, given acceptable explanation and apology, the defendants can then seek to agree their respective contributions. The “reasonable range” figure will give incentive to all sides and even if it does not lead to full resolution it will open the possibilities for partial settlements between the plaintiff and some of the defendants.
International experience indicates that Cases seem to resolve more consistently if mediation occurs very early. Unlike many defendants, most medical negligence defendants are experts who can understand the facts, the risks and the theories. They may very likely have access to almost all the facts long before the plaintiff’s discovery even seeks them. At that stage the plaintiff will be only be at a stage of beginning to significantly increase the costs by engaging his own (usually foreign) experts.
By now the plaintiff’s negative feelings towards the doctors and health care providers will have hardened significantly. The defendant’s’ “denial matrices” will also have hardened. What was a great tragedy for which a defendant felt sorry eventually became a past matter, an historical event that the defendant does not wish to remember or to accept any responsibility for. Medical negligence cases always involve personality problems as well as the specific issues.
Mediation works best when both parties are still able to communicate and listen.
Medical costs are now a big issue. Costs of fully litigated cases are enormous, professional indemnity insurance premiums are huge and all of these costs are eventually “passed on” to the consumer and the State and become reflected in both the actual cost of healthcare and the standard and level of that care and places a considerable economic burden on society. The process helps both parties be heard and arrive at an amicable solution.
American studies show that the average cost of a case which results in a relatively early mediated agreement is about 20% of the average cost of a fully litigated case. Mediation allows all parties to be heard and facilitates a fast, cost-effective, confidential and satisfactory outcome for all – including the considerable benefit for practitioners of increased client satisfaction.
If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 087-2268394 to discuss your requirements or organize a mediation.
For more information on our mediation services CLICK HERE
Mediation Advocacy Training
Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.
For more information on our training programs CLICK HERE