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According to a report compiled from the National Practitioner Data Bank, in 2012, over $3.6 billion dollars was paid out in medical malpractice claims. Of these payouts, 93% were the result of a settlement rather than a judgment, which clearly shows the success rate of alternative dispute resolution practices such as professional malpractice mediation.
When a professional offers services—whether it be medical, legal or investment-related—the possibility always exists for something to go wrong. After all, professionals are human and humans make mistakes from time to time—even the ones who are exceptional at their jobs. In cases for which something goes wrong, most professionals are covered by an insurance policy for malpractice claims. In fact, in today’s world, very few professionals practice their craft without one.
That’s why professional malpractice mediation is a great way to reach a settlement on a malpractice claim. With litigation comes not only added expense, but also loss of time and (potentially) reputation in the process. However, with professional malpractice mediation, both sides are able to openly communicate about the conflict with the assistance of a third party, neutral mediator. This process of open communication facilitates a quicker settlement so that everyone can get back to their lives and put the incident behind them.
Many organizations encourage mediation as a way to resolve professional malpractice claims because it is a low-cost, low-profile option. The best part is that if either party is not happy with the outcome of the mediation proceedings, they can then choose to litigate the claim. While mediation ensures that the parties in conflict remain in control of the outcome of their own negotiations, it doesn’t always promise a resolution to the conflict. However, in many cases involving professional malpractice, a mediator is able to bring the parties to a place of mutual agreement on settlement terms, making the process easier for everyone involved.
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In a study conducted by Mary P. Van Hook entitled “Resolving conflicts between farmers and creditors: An analysis of the farmer-creditor mediation process,” the author took a closer look at the effectiveness of creditors rights mediation in the influx of farmer-creditor cases throughout the country in the wake of severe economic hardship. Van Hook reiterates that due to the complexity of the situation and the prevalence of such cases, many states ruled that mediation should be the first option before further action is taken on behalf of the creditors who are owed money. Since many of the farmers involved simply did not have the equipment and supplies needed to grow the crops, get paid and pay back what they owed, tension was high in many of the cases and mediation was the most likely method of alternative dispute resolution to ease it.
Focusing her study on identifying what aspects of the mediation process made this a useful way to resolve the issues between farmers and creditors, Van Hook conducted analysis of the responses of creditors and farmers who had been through the creditor’s rights mediation process. From these responses, she was able to glean a list of ‘best practices’ for mediators when dealing with any type of creditor’s rights dispute.
Of these best practices, “impartiality and the ability to help both parties present their case emerged as important for all three parties.” According to Van Hook, helping both parties present their case required the mediator to “exercise the control needed to prevent any one party from dominating as well as make participants feel comfortable.” Additionally, she noted that many farmers involved in the process “indicated that experiencing the mediator’s concern was helpful.”
Regarding the credibility of the mediator, both the creditor and the debtor in most mediation sessions studied stated that “knowledge of financial issues was important.” This reiterates the necessity of understanding the day-to-day process, including cash flow, involved with the conflict in dispute, particularly in matters related to business and enterprise.
(Note: The entire study can be found here: http://deepblue.lib.umich.edu/bitstream/handle/2027.42/51202/435.pdf?sequence=1)
Mediation in a wrongful death case is often required by the courts before a civil trial can ensue. Once regarded as an alternative to litigation, mediation (particularly in wrongful death cases) is quickly becoming a step disputants must take before litigation can occur. This isn’t a bad thing: Mediation has quickly proven itself to be an effective and cost-saving alternative to going to court. In addition, mediation leaves the control of the outcome in the hands of the parties in dispute—only they can decide the terms upon which they want to settle.
The mediator involved in a wrongful death mediation hearing will be an attorney who is familiar with the law relating to wrongful death claims. While impartial, he or she will be able to advise each disputant how a judge and jury would likely rule on the case, if taken through litigation. This knowledge often helps the parties in dispute come to an agreement more quickly, once they see that mediation offers them more control over the outcome than a judge and jury would offer. In this respect, it is important that parties in dispute over a wrongful death accusation choose a mediator that they can both trust to give them solid, non-biased advice.
If insurance is involved, a representative from the insurance company will likely be present at the mediation hearing. Many nursing homes, hospitals, doctor’s offices and health clinics have insurance policies to protect them from going under due to wrongful death or medical malpractice lawsuits. Therefore, the insurance company will want to have a representative present to ensure that all details relating to the claim are dealt according to policy and according to the proper legal guidelines.
In the end, mediation is about numbers and compromise. An honest, thorough look at the numbers involved in a claim can allow both parties to compromise in a way that allows them both to leave the mediation hearing with a sense of closure and with the sense that it was handled fairly.