Mediation is sought when outlook is risky
Mediation is sought when outlook is risky
Even though its mediation program is successful, that does not mean Rush-Presbyterian-St. Luke’s Medical Center in Chicago submits all medical malpractice cases or other lawsuits for mediation. When hospital officials think the case is highly defensible, they may decided to press forward with a defense in court.
The mediation program is most useful for the many cases in which the defense is a little more iffy or the potential payout means a jury trial is just too risky, says Max Douglas Brown, JD, general counsel at Rush. That decision is made well before the case is prepared for trial, so the hospital saves a substantial sum on attorneys’ fees regardless of the payout. Mediation requires less preparation and documentation than a malpractice trial, so the dispute can be resolved at a much earlier stage before both sides spend a lot of money.
Brown says these six factors are studied when deciding whether to suggest mediation for a case:
1. Do the parties and their attorneys genuinely desire prompt resolution?
2. Is the medical center willing to offer a monetary settlement?
3. Have both parties researched their cases well enough that they will be capable of resolving the dispute in mediation?
4. Would continuing discovery be costly and mostly just a formality, not adding much more information?
5. Are there unpredictable factors that make the outcome of jury trial difficult for either side to anticipate?
6. Can the parties work toward resolution in a reasonable manner? For instance, mediation may be difficult if the parties have a bad history from previous legal encounters or already have reached an impasse in negotiations.
The more those questions can be answered affirmatively, the more appropriate the case is for mediation, Brown says. Mediation is seen as a reasonable way for the hospital to make amends with a patient without risking a jury award that is far beyond just compensation, says Jerome Lerner, JD, a retired Cook County, IL, circuit court judge who now acts as the mediation consultant for Rush’s program.
"The risk management department and the general counsel at Rush evaluate the evidence in the claim, and the hospital’s defense attorney may participate in the initial discovery," Lerner says. "At some point, they may advise the hospital that the case is highly or totally defensible, or they may advise that the hospital should consider the prospect of verdict in favor of the plaintiff. In that latter case, that’s where the case becomes appropriate for mediation."
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