Litigation Education: Finding Solutions Through Mediation

Foreword by Kristi Wright 
At some point in the litigation process, you may be asked to attend a mediation. Mediation is an opportunity for all parties involved to come together with a neutral third party and try and resolve the case. Depending on the state, mediation can be mandatory before trial, or it can be voluntary. Understanding what mediation entails, how it works, and what you can expect is essential if you are asked to participate. Kate Johnson, a former medical malpractice attorney and Senior Claims Consultant with Curi, provides an overview of this process.

First, it’s important to acknowledge that not all cases will proceed to mediation. Mediations are typically voluntary and only used when the parties want to settle a case rather than go to trial. Some jurisdictions require mediation before a trial, and in certain situations, a judge may order mediation. However, judges cannot force a settlement. If the case is defensible, defendants are not obligated to present a settlement offer during mediation.

In medical malpractice cases, mediation is a confidential and structured process where a neutral third-party mediator helps facilitate negotiations between the parties involved—typically the plaintiff (patient) and the defendant (healthcare provider). The goal is to resolve the dispute through settlement, often by agreeing on monetary compensation, in exchange for a dismissal of the lawsuit. In states with mandatory mediation, parties may attend without having a settlement offer on the table.

Mediation has the potential to offer closure, avoiding the need for a prolonged jury trial, and can be an effective resolution for some cases.

Who will be at the mediation?

• Mediator: Typically, an attorney with a background in litigation, will facilitate discussions and negotiate between parties.
• The Parties
  • The Plaintiffs: This frequently includes a family member or multiple family members
  • Your Curi Insurance claims consultant
  • Your defense attorney
  • You: If you and your defense team agree that your attendance will benefit the process.

Some mediations occur by video (via platforms such as Zoom), while others are in person. Your defense attorney and claims consultant will advise on whether attending remotely or in person is the best course of action.

What will happen during mediation?

• Location: Mediations are typically held at a law firm. 
  
  
• Opening Sessions: Frequently the parties will begin in a joint conference with the mediator. In this joint session, the mediator will review the rules and the parties will meet one another. Sometimes the mediator will allow each side to make a brief statement during this general session, outlining what the party sees as the strengths of its case or the weaknesses in the opposing party’s position. Alternatively, the mediator may recommend waiving or skipping the joint session. After this session, the parties will adjourn to separate conference rooms for the remainder of the day.
  
  
• Separate Negotiations: After the opening session, parties usually break into separate rooms. The mediator starts with the plaintiff’s team and listens to their perspective before moving on to the defense team. The mediator conveys information and offers between both parties to facilitate a settlement. This back-and-forth continues throughout the day.
  
  
• Memorandum of Understanding: If the parties agree on a settlement figure, they will draft a “Memorandum of Understanding,” which is an initial agreement that precedes the formal settlement agreement. This will serve as an initial agreement for the parties until the final terms are memorialized in the settlement agreement.
  
  
• No Settlement: Parties can leave a mediation without reaching a settlement. Parties can still choose to go to trial despite attending mediation. This may happen if the demand is unreasonable, or the case has been deemed defensible, and no payment is indicated.

What happens if the mediation is disbanded without an agreed upon settlement?

• Even if the case is not settled at the mediation, the mediation may create enough momentum to lead to a settlement. Parties could decide to re-enter settlement negotiations after additional discovery is undertaken.
  
  
• It’s important to be patient with the settlement process. Early demands from plaintiffs can often be quite high, so the goal is to reach a fair resolution for all involved.
  
  
• The case could still go to trial if the parties attend mediation but cannot agree on a settlement value.

At Curi, we defend good medicine and stand firm against unreasonable demands. While mediation may not be the right fit for every case, in certain situations, early resolution can be in everyone’s best interest.

Stay tuned for our next blog, where Senior Claims Consultant Jeremy Wale will provide guidance on what to expect if your case goes to trial. Remember, only 5 to 10% of cases go to trial. 

For more insights into the litigation process, we suggest listening to Dr. Gita Pensa’s podcast: Doctors and Litigation: The “L” Word, trail-and-settlement. For additional information on this subject, watch video ten: Solution Seeking Through Mediation on curi.com/litigation-education.

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