Mediation is one of the various alternate dispute resolution options available to parties involved in a lawsuit to resolve their dispute prior to trial. Due to budget cuts, reduced resources, and growing difficulty seating juries, mediation has become standard practice with many courts all but mandating that parties ‘go through’ mediation prior to trial.
Unfortunately, one size does not fit all; while studies suggest that voluntary mediation is highly successful, court-ordered mediation is less likely to result in the resolution of a dispute. In some circumstances, while it is tempting to view mediation as a waste of time, we take the view that mediation should be seen as a valuable method towards any number of other positive outcomes, even if mediation does not result in settlement.
Communicate your litigation philosophy.
While some might consider reaching a settlement as the foremost reason to mediate, we would suggest the first and main reason to mediate is to communicate your litigation philosophy to the otherside.
Let us explain:
Many plaintiff attorneys presume that an agreement to mediate means that the defense is eager to pay something to ‘get rid’ of a case. This perception is often due to the fact that many defendants, driven by fear of potential litigation costs and potential publicity, are willing to pay to make a case ‘go away.’
The downside of this approach is that an organization can (and many do) develop a reputation in the legal community as being an easy target for frivolous lawsuits, which only attracts more litigation. The flipside is that a ‘defend at all costs’ adversarial approach can earn a medical institution, for example, a very poor reputation in the patient community it is seeking to serve.
It’s about your reputation.
Our view is that mediation strategy should primarily be driven by the strong, positive long-term reputation you want for your institution. At Stanford University Medical Center, we want to continue to be known by our culture of compassion, healing and quality, which includes both the openness and transparency necessary to identify and learn from mistakes, and the readiness to apologize and provide fair compensation when medical errors do occur.
Additionally, we have an obligation to support and shield the institution and our medical providers from meritless as well as frivolous lawsuits. These objectives led us to develop a litigation philosophy we call “firm, but fair.”
Firm, but fair.
This philosophy requires a consistent, principle-based approach, and the buy-in of our stakeholders towards those long-term objectives.
Being fair means we positively seek the early assessment and fair settlement of meritorious claims. For this reason for example, we developed our PEARL program. And being firm means we steadfastly defend claims that are without proper foundation, and are willing to fearlessly pay the costs of defending a matter at trial.
Over the next few posts in this series, we’ll explore how our “firm, but fair” philosophy shapes our approach to mediation.
By Brad Briegleb, Esq. and Simon J. Mawer, LL.B
Brad currently serves as the Vice President of Claims and Litigation Strategy for The Risk Authority. He has over 32 years of medical malpractice litigation and claims management experience representing hospitals, doctors and nurses both as an in-house attorney and trial lawyer. Brad is a graduate of California State University, Hayward, with a degree in Psychology and from Pepperdine University School of Law where he graduated Cum Laude.
Simon serves as Program Manager of Risk Management for The Risk Authority, where he provides communications, claims management, and case evaluation services for the Stanford University Medical Network. With experience in commercial and tort litigation in Australia and California, he holds Bachelor of Laws and Graduate Certificate of Legal Practice from the University of Technology, Sydney.