Mediation is a word that isn’t used very often outside the context of litigation. In Texas medical malpractice lawsuits, though, it’s used all the time. If you’re considering a lawsuit or are a plaintiff wondering what to expect at mediation, this article will help answer some common questions.
Mediation is a meeting where the parties to a dispute get together to try to work it out with the assistance of an experienced neutral third party.
Although some mediations happen pre-suit, in the context of Texas medical malpractice, this is rare. Most of the time, mediation happens shortly before the case goes to trial. In fact, many Texas courts require mediation before they’ll let the case go to trial.
Timing is important when it comes to mediation. I personally find that it’s most often successful when mediation scheduled shortly before a trial setting. As a plaintiffs’ attorney, I also want to make sure that the case is sufficiently developed to give the defendant’s insurance company enough time to evaluate our expert opinions and the type of money damages that they could be forced to pay if they lost a lawsuit. In my experience, having that information out there at least 45 days before mediation is critical.
Even in the occasional situations where a defendant wants to go to mediation pre-suit or almost immediately after a lawsuit petition is filed, it’s still important for the plaintiff to go through the process of developing the liability and damages evidence. That’s the only way that a defendant can evaluate the claim and make a reasonable offer. To do anything else would be a shot in the dark.
Who is the mediator and what authority does he or she have?
Some courts order the parties to use a particular mediator. Most of the time, though, the attorneys for each side choose a mediator by agreement.
Mediators are typically attorneys, retired judges, or even retired insurance claims adjusters. I’ve found that the best mediators often have direct personal experience with the type of case that they are mediating. For medical malpractice cases, I think it’s important for the mediator to have some specific experience in this complex area of the law.
It’s important to realize that mediators don’t have the authority to force a settlement. A mediator can’t force a defendant to pay one dollar or a plaintiff to accept a million dollars. I think of mediators as facilitators of settlement discussions. The best mediators draw from their personal experience to provide insight to both sides about how a judge and jury might react to the facts and law applicable to a case.
Mediators have the authority to keep the parties present at mediation until the case settles or the mediator decides that there is an impasse.
Where does it happen?
Mediations aren’t held at the courthouse. Many mediators use their own office space to host mediations. Alternatively, mediations can be held in the offices of one side or the other or even at a hotel.
In my view, it really doesn’t matter where the mediation is held, so long as there is enough space for everyone to spread out. There must be separate rooms for each party, so parties can have private conversations with their attorneys and the mediator.
Who attends mediation?
For mediation to be successful, all of the decision-makers need to be present. This means all plaintiffs and their attorneys, plus all defendants, their attorneys, and insurance adjusters. When there is a hospital defendant, corporate representatives may also attend.
As a plaintiff, you might not recognize the insurance adjusters and corporate representatives, but they are often the most important people at mediation in terms of getting the case settled. They are the ones with authority to pay money to resolve a plaintiff’s claim.
An insurance adjuster is an employee of a defendant’s medical malpractice insurance company who is assigned to handle a specific claim. The same insurance adjuster is typically involved with the case from start to finish. Some large hospital defendants are self-insured, which means that a corporate representative, often a risk manager, fills the decision-making role that is usually left to an insurance adjuster.
What should I expect?
Mediators uniformly request that the attorneys for all parties provide them with their written analysis or position of the case before mediation. Recently, I was surprised to learn from a former state district judge, who now mediates a lot of medical malpractice cases, that a lot of attorneys don’t submit anything in advance. I think that’s a big mistake and always take advantage of the opportunity to get the mediator up to speed before the mediation even begins.
The first thing to expect from mediation is a long day. I constantly remind myself and my clients that it may take a while, but you have to trust and go through the process if there is any hope of it working.
Mediation day usually beings with a general session where all parties, attorneys, corporate representatives, and insurance adjusters meet in the same room with the mediator.
Sometimes, attorneys will take turns giving brief presentations about how they view the case. Other times, the general session will be limited to introductions, and then the mediator will explain the process and schedule for the day.
Either way, a mediation general session is often a tense and emotional time for plaintiffs. Sometimes, it’s the first time that they’ve seen a defendant physician since the poor healthcare that led to serious injury or wrongful death.
I recommend to my clients that they stay calm and don’t say anything during the general session. This includes having a “poker face” and not responding to any statements by defense counsel that might seem absurd, dishonest, or insulting. Remember, the purpose of mediation is to try to resolve your claim. Losing your cool may lead the defense side to think that you couldn’t control yourself at trial, which could influence their evaluation of the case and how much they may pay to settle it.
After the general session, the party groups will break up into their individual rooms. Usually, the general session is the last time the party groups will see each other.
At this point, the mediator will start making the rounds, usually starting with the plaintiff. These sessions are confidential in that the mediator is not supposed to divulge any information revealed in the private caucuses without permission.
For the initial private meeting with the plaintiff, the mediator typically wants to get acquainted and then hear the basics about the case. During this first meeting, the mediator will request an initial demand. The demand is the first dollar amount that the plaintiff puts out there to get negotiations started.
Because this comes up a lot, I think I should address the amount of the initial demand. There are some important considerations that a plaintiff’s attorney has to keep in mind when recommending an initial demand number to the plaintiff:
• The maximum total damages at trial. It’s the job of the plaintiff’s attorney to put together the evidence that shows the maximum amount of money that could be awarded if the judge and jury gave the plaintiff everything that he or she asked for.
• The total insurance coverage for each defendant.
• The estimated proportionate responsibility of each defendant, when there are multiple defendants.
• Any caps that apply, including the non-economic damages cap, the wrongful death cap, Tort Claims Act cap for public hospitals or employees, etc.
Some plaintiffs have the natural, understandable, knee-jerk reaction of wanting to make an initial settlement demand of the maximum possible damages that could be awarded on their best day in court. I haven’t yet encountered a situation where I found that to be a good idea. In my practice, I always come up with my own idea, but ask the mediator for input before discussing it with the client.
The goal is to make an initial demand that shows a realistic evaluation and appraisal of the case, to create an incentive to get the other side to start offering real money to try and settle.
Back during the Nixon administration, someone coined the term “shuttle diplomacy” to describe the back-and-forth negotiations that Secretary of State Henry Kissinger did to open up China. Once the mediator gets the initial demand from the plaintiff, that’s pretty much what the rest of the day looks like. The mediator travels back and forth between sides to try to get the maximum offer on the table to settle the case.
How should I dress and what do I have to do?
I recommend to my clients that they wear appropriate business casual attire. Mediation is going to be a long day, so it’s a good idea to wear reasonably comfortable clothing, but at the same time dress up enough to reflect the serious business of the day.
As a plaintiff, you’ll be relieved to know that you don’t have to say a word in the general session. You don’t have to give testimony or answer any questions in front of people. Listen to every word of the information that is communicated by the other side, the mediator, and your attorney. If you need to speak with your attorney in private (without the mediator in the room), just ask. No one will be offended.
Who decides whether to settle?
In every written agreement the client signs to hire Painter Law Firm, there is a clause that makes it clear that it’s ultimately the client’s authority to make the settlement decision. It would be unethical for any attorney to settle a claim without the client’s input, authority, and decision.
As a Texas medical malpractice lawyer, my primary goal is to get every dollar possible on the table from the defendants. Once we are convinced that the final settlement offers have been made, it’s time for the plaintiff to decide whether to accept or reject what’s been offered.
Don’t worry, though: you will have an opportunity to get the advice of your attorney and input from the mediator before deciding.
How long does it take to get the money if the case settles?
If the parties decide to settle at mediation, the mediator will prepare a brief mediation settlement agreement, which will be signed by the parties and their attorneys. Afterward, the defense attorneys will prepare a more comprehensive settlement agreement, which will need to be signed by the plaintiffs.
It usually takes about a month to get a settlement check if no minors are involved and there are no liens or subrogations. If there’s a Medicare or Medicaid lien, hospital lien, or valid and perfected health insurance company subrogation interest, then it will take some additional time to sort that out before funds can be distributed.
When there are minor plaintiffs, there is an additional step. The court will approve a guardian ad litem, an attorney to represent the minor’s interest, who will look into the settlement and make a recommendation to the court as to whether the settlement is in the child’s best interest and, if so, how the money should be invested until the minor becomes an adult.
About four to six weeks after the court appoints a guardian ad litem, there will be a minor settlement hearing. If the court approves the amount and distribution of the settlement, and the recommended way the minor’s portion will be invested, it takes about another month to get the settlement checks.
What if the case doesn’t settle?
Under Texas Civil Practice and Remedies Code Section 154.073, anything communicated at mediation is privileged. This means that it can’t be used against you at trial. At the conclusion of mediation, the mediator informs the court whether the case has settled or not, but does not reveal any information about what was discussed.
If the case doesn’t settle at mediation, negotiations may continue up until the time of trial. Some cases end up settling in the days and weeks after mediation, with the attorneys and mediator continuing to communicate amongst themselves.
If the case doesn’t settle, though, then there is no obstacle standing in the way of trial and, as a plaintiff, you’ve benefited by obtaining information on the other side’s case from mediation.