Explain the mediation process to your client and keep them involved throughout the process.
Few plaintiffs have any idea how mediation works. They often think that they will have to talk to the mediator or sit in the same room with the defendants.
Before any offer is communicated by the mediator, you need to explain both the mediation process and the fact that the first offer by the defense may be far from the real value of the case or the eventual settlement value.
Many plaintiffs think that mediation is simply a method for the defense to admit their guilt and pay damages to the plaintiff, and they are often offended by the opening offer.
Some mediators prefer to discuss any offers or issues affecting liability directly with the plaintiff's attorney and then leave the attorney to talk to the plaintiff. Other mediators will discuss both offers and other issues directly with the plaintiff and attorney.
Which method works best for each case should be more dependent on the receptiveness of the plaintiff to separate discussions between the mediator and the attorney.
Be prepared to continue negotiations if the case does not settle at the first mediation.
Successful mediation of a complex medical malpractice case should be viewed as a process rather than as a onetime event. While many cases can be settled in one session, there are a variety of reasons why they cannot.
But even when a case does not settle, the mediation should be used to narrow the issues and determine what can be done to make a second session worthwhile. Where time prior to trial permits a second mediation session, it should be scheduled, if possible, before leaving the mediation.
But there should also be a specific plan that is agreed upon by both sides about the issues or discovery that must be resolved before returning to mediation.
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This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff Magazine
