In recent years, there’s been a push toward mediation over litigation in just about every area of civil law — and medical malpractice is no exception.
Advocates of mediation over litigation for medical malpractice say that it promotes communication and can change the perspectives of everyone involved. They argue that the results can be beneficial in ways that go beyond financial compensation, allowing families to gain more closure and encouraging hospitals and doctors to revise practices or implement new procedures that will prevent similar tragedies.
Those advocates also say that medical malpractice attorneys are the gatekeepers who determine whether clients actively participate in mediation or not. They speculate that attorneys are resistant to mediation for a variety of reasons, ranging from seeing it as putting their clients through unnecessary steps or legal exposure to simple self-interest so they can bill more hours.
However, mediation isn’t really a salve that will benefit every medical malpractice case. In some situations, it really does have disadvantageous for the plaintiff. An attorney would be wrong to encourage mediation that doesn’t serve his or her client’s interests.
What are the potential disadvantages of mediation?
— If the parties are both entrenched in opposing viewpoints and their suggested outcomes are very far apart, mediation is probably not going to result in a resolution. That means that the plaintiff may end up going through a time-consuming, emotionally-draining process only to have to turn around and go through a court case anyhow.
— There are rules in place that keep both sides within a certain standard of behavior. If one side is substantially more aggressive than the other, a mediator may not be able to control the process well enough to keep it fair.
— Mediators can’t compel discovery and get to the truth of matters the way that a personal injury attorney often can in court. In court, witnesses can be compelled to testify and the defense can be made to turn over evidence they might prefer to keep quiet.
If your attorney advises against mediation in a medical malpractice case that’s been suggested by the other side, listen carefully to the reasons as you determine what is best for you.