By Joy David, Albany Government Law Review
Mediation may be the answer to several problems associated with medical malpractice litigation. “Mediation consists of the use of a neutral third party to facilitate a discussion between two opposing parties in an informal environment where the parties have the opportunity to discuss accusations or other elements of conflict.” There are reasons to use mediation for medical malpractice claims, and reasons not to. Policy considerations, as well as potential benefits to all parties involved, are cause to at least consider mediation as an option for dealing with medical malpractice claims.
Mediation is rarely used in medical malpractice claims; both plaintiffs and defendants have reasons for avoiding it. Those reasons typically stem from attorney concerns about decreased attorney fees, however. From plaintiff attorneys’ perspectives, there is a belief that mediation will result in a lower settlement than a jury award would. This means that their contingency fees will be lower. Defense attorneys also think they will see less money from their clients if mediation, instead of litigation, is used to resolve a claim. Fewer hours are spent to prepare for mediation as opposed to litigation and therefore fewer hours are billed to the client resulting in less money for the attorney or firm.
While there are concerns for the attorneys, the parties themselves have much less to fear when deciding to try mediation to settle a medical malpractice claim. This article will address four reasons why parties should consider mediation
First, the uncertainty and adversarial nature surrounding a jury trial is eliminated. Mediation encourages a settlement agreement between the parties, as opposed to litigation which forces the parties to ‘fight’ it out in court, and allows the jury to decide how much, or how little, the plaintiff deserves. In mediation, the parties themselves figure out what is appropriate. This process eliminates the roles of “winner” and “loser”—roles emphasized in the outcome of litigation. If the parties feel uninvolved in the process, the “fairness” of an award is jeopardized.
Fairness . . . depends on the opportunity a party has to express himself, the amount of participation a party has in shaping a settlement, and the ability a party has to control final decisions. Litigation, by its nature, generally does not allow parties to experience these factors of fairness
The perception that a resolution is fair is instrumental in the satisfaction of the parties. The process of mediation is intimately concerned with the notion of “fairness” and overall resolution while litigation is more focused on legal resolutions instead of “conclusive” resolutions.
Second, mediation provides the parties with an opportunity to talk to each other.
Mediation enables the parties to deal with the issues they believe to be important, as opposed to giving attorneys cart blanche to argue the legal merits or what they perceive as the most important issues; rather mediation provides the parties with a sense of being heard.
In litigation, the attorneys do most of the talking. Neither party is afforded an opportunity to explain themselves to the other in litigation. As a result, the plaintiff is left feeling that no one is sorry for his or her injury or loss, and the defendant is left feeling “burdened and very distressed” knowing that they caused harm to a patient. The opportunity to be heard is of paramount concern to both parties involved in a medical malpractice claim.
Many times, the defendant’s perceived lack of remorse or accountability is what drives a plaintiff to file a malpractice claim. “[U]p to 98% of civil medical malpractice claimants desire apologies. And 37% wouldn’t have filed suit had the doctor fully explained and offered an apology to begin with.” When an undesirable result occurs, doctors have typically been instructed not to apologize because it may be perceived as an admission of guilt.
Mediation provides a chance for the parties to sit down together and discuss everything that has occurred. Further, anything that is said in mediation is confidential. Parties can openly discuss their viewpoints in mediation, without fear of anything they say being used against them if the mediation is unsuccessful and the parties do litigate the claim. This helps alleviate the concerns defendants have with apologizes, while providing plaintiffs with the closure and accountability for their loss or injury that they desire. Furthermore, the defendant, when provided with an opportunity to apologize may view it as a way to “be absolved for an error and move on with life.” Both parties receive psychological and emotional benefits from participating in the mediation process.
Third, the emotional burdens of litigation for medical malpractice claims are heavy, for both parties. Litigation of a medical malpractice claim could take years, extending the time both parties have to deal with the issue. The emotional stress both plaintiffs and defendants face during this time is substantial. Defendants could be kept away from the medical practices, thus loosing potential patients and opportunities. Doctors will, at the very least, be embarrassed by the mere accusation of negligently harming a patient. Plaintiffs could be struggling to support themselves or their family because of an injury or loss. While this is also a financial concern, the inability to support oneself or one’s family is surely emotionally distressing. On top of these concerns, plaintiffs may be dealing with extreme grief or depression as a result of the injury or loss; they are left wondering how they will continue to live their lives. The plaintiffs are subjected to extensive invasion of their health history—the plaintiff, by filing a medical malpractice claim, will effectively forfeit their right to privacy in terms of their medical history.
As a result of a neutral third party’s participation as a mediator, settlements are typically reached faster than they would be if done solely between the opposing parties’ attorneys. A quicker settlement agreement means that both parties can put the claim behind them and continue on with their lives.
Fourth, the financial burden caused by medical malpractice litigation may be significantly reduced for both parties. While mediation may be a financial “burden” for the parties’ attorneys, it is anything but for the parties. As previously mentioned, the preparation for mediation is shorter than preparation for litigation, and therefore clients will have fewer billable hours. Parties may still decide to consult or hire expert witnesses when using mediation, but because the expert witnesses will not need to testify in court, the expert witness fees—which can be colossal in litigated claims—are reduced. For example, a study done involving the “transaction cost” of litigation found that those costs “often consume about 3% of the plaintiff’s ultimate recovery.” In using mediation, instead of litigation, the defendant may be able to settle for a lower dollar amount because the “transaction costs” related to the malpractice claim have been reduced or eliminated by the decision to mediate, thus allowing the plaintiff to be made whole for a lower dollar amount.
In addition to the benefits the parties themselves experience, there are also public policy benefits to using mediation for medical malpractice claims as opposed to tort-based litigation. Tort reform has been a concern in New York for some time now, and mediation may be a way to help alleviate some of those concerns. Part of the proposal for tort reform in New York included a potential cap on noneconomic damages, such as pain and suffering. A cap on noneconomic damages would, arguably, leave the plaintiff partially uncompensated for their injury or loss. Caps on economic damages may also negatively affect efforts to deter “substandard” care. The “cap” would likely invoke feelings of unfairness, thus causing plaintiffs to feel that the system is broken, and thereby discouraging them from bringing legitimate claims. Supporters of a “cap” argue that high insurance costs, as a result of high legal costs associated with defending a medical malpractice claim, have “crippled” the medical system by “creating doctor shortages in areas of practice like obstetrics and gynecology, where the risks associated with practicing are high.” This leads doctors and other medical professionals to feel the system is unfair or broken as well.
Mediation, however, allows the parties to come to an agreement, together, to determine what is fair and reasonable under the given circumstances. In addition, concerns about the costs associated with medical malpractice claims are alleviated when parties decide to mediate a claim because the process is quicker and more cost effective.
Mediation would allow for more medical malpractice claims to be resolved. Because of the high cost of litigating medical malpractice claims, many attorneys will not accept clients unless there is a high probability the settlement or award will be high. “[P]robably only one to ten percent of the patients involved in occurrences of negligence actually file malpractice lawsuits… injured patients simply are not compensated.” Due to the ability to prepare for mediation significantly faster than litigation, plaintiff attorneys could take on more cases, thus creating more accountability for doctors, and more compensation for patients. This process would also contribute to the goal of deterring substandard care and would also allow doctors to stay in the fields that have been deemed “high risk,” such as obstetrics and gynecology.
In conclusion, settlement agreements reached through mediation will be accurate, in the sense that the individuals directly involved are responsible for reaching them. If the mediation goes well, the plaintiff will leave feeling that they were fairly compensated for their loss or injury, that they were heard and someone was held accountable, and the defendant will leave feeling that they had the opportunity to explain themselves, possibly apologize and helped make the plaintiff whole again, without jeopardizing their own career or reputation. The public will also benefit by having court costs decreased, less backlog in the court system and more accountability for doctors and medical providers as a whole.
In short, mediation is simply an option that should be considered when a client presents a medical malpractice claim to an attorney. If the mediation fails, the parties are of course free to pursue litigation without fear of anything discussed in mediation being used against them.
 Natasha C. Meruelo, Mediation and Medical Malpractice: The Need to Understand Why Patients Sue and A Proposal for A Specific Model of Mediation, 29 J. Legal Med. 285, 292 (2008).
 Michelle Andrews, Mediation Could Help Remedy Medical Malpractice Mess, npr.org (2011), http://www.npr.org/blogs/health/2011/02/01/133399502/first-let-s-blame-the-lawyers.
 Id. “Although there are no hard data, mediation settlements tend to be smaller than jury awards, say experts.” Id. See also Scott Forehand, Helping the Medicine Go Down: How A Spoonful of Mediation Can Alleviate the Problems of Medical Malpractice Litigation, 14 Ohio St. J. on Disp. Resol. 907, 922 (1999).
 Andrews, supra note 2. “Plaintiff’s lawyers typically work on a contingency basis in medical malpractice cases, earning about 30 percent of the settlement amount”.
 Id. “Unlike plaintiff’s lawyers, defense attorneys in medical malpractice cases typically bill clients by the hour. In one recent study, medical malpractice lawyers estimated they spent six hours preparing for mediation versus 100 preparing for trial.” See also Hyman, infra note 32.
 Meruelo, supra note 1, at 292.
Andrews, supra note 2.
 Meruelo, supra note 1, at 292.
 Id. at 288.
 Forehand, supra note 3, at 909-10.
 Id. at 909.
 Id. at 910, 921. Mediation will attempt to resolve all issues, both legal and personal, while litigation will focus almost solely on the legal claims. Even after a verdict has been returned, appeals may be taken, causing the conflict to continue, and providing no resolution for either party.
 Meruelo, supra note 1, at 292.
 Id. at 293.
 Id. at 291. “[A] physician who admits and explains a medical mistake may also have an opportunity to express regret or remorse when speaking about the mistake face-to-face with a patient. This behavior likely will indicate to a patient that the physician cares and that the patient’s suffering means something to whomever may have caused it, even if accidentally, thus fulfilling what many patients deeply desire in such situations.” Id.
 Meruelo, supra note 1, at 289.
 Brent T. White, Say You’re Sorry: Court-Ordered Apologies As A Civil Rights Remedy, 91 Cornell L. Rev. 1261, 1271 (2006).
 Leonard Berlin, Will Saying “I’m Sorry” Prevent a Malpractice Lawsuit? 187 Am. J. of Roentgenology 10 (July 2006), available at http://www.ajronline.org/content/187/1/10.full#aff-1. “In the context of litigation, apology is often seen as an admission of guilt . . . apologies are discouraged because they tend to put the blame on the defendants and the jury often construes them as tantamount to the defendants convicting themselves of the alleged act of wrongdoing.” Id. at 13. See also, Steven Gosset, Mediation Can Help Resolve Malpractice Lawsuits, Study Finds, But Doctors, Lawyers Remain Wary, prweb.com (2010), http://www.prweb.com/releases/2010/12/prweb4892554.htm (stating that while most doctors would like to apologize to the harmed patient, they “refrain from doing so out of fear of legal liability”) Id.
 Gosset, supra note 19.
 Meruelo, supra note 1, at 291.
 Id. at 293.
 Id. at 293-94.
 Forehand, supra note 3, at 926..
 Hon. Robert L. Harris, Sr. (Ret.) & Mark E. Rubin, Esq., Mediation: Better Resolution of Medical Malpractice Claims, mccammongroup.com, (Dec. 2003), http://www.mccammongroup.com/articles/medical-malpractice-mediation.asp.
 The New York City Health and Hospitals Corporation participated in a study to measure parties’ satisfaction with mediation as a tool for resolving medical malpractice claims. Out of twenty-nine referred cases, twenty-four agreed to mediate, and nineteen were actually mediated. The study determined that the mean length of mediation was 2.34 hours. Other findings suggested that plaintiffs were able to receive compensation closer to the date of the harm than they would be had they litigated the claim. See Chris Stern Hyman & Clyde B. Schechter, Mediating Medical Malpractice Lawsuits Against Hospitals: New York City’s Pilot Project, 25 Health Affairs, 5, 1394 (Sept./Oct. 2006), available at http://content.healthaffairs.org/content/25/5/1394.full.
 Forehand, supra note 3, at 909.
 The study found that attorneys estimated they spent on average 3.49 hours preparing for mediation, compared to an estimated 36.29 hours they would have spent preparing, had they litigated the same claim. “This difference between time spent preparing for mediation and estimated time spent preparing for trial among all attorneys was highly statistically significant (p < .00005).” Hyman, supra note 32, at 1396. Put in practical terms, if an attorney bills at $300.00 per hour, mediation would cost the client, on average, $1,047.00, as opposed to litigation, which would cost $10,887.00. That is a total savings of $9,840.00 to the client—not including the amount the client would save on court fees and discovery fees.
 Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. Rev. 805, 824 (2011) (transaction costs, in this context, were described as attorney fees and retainers, deposition costs, expert witness fees and court costs).
 Id. at 825.
 Forehand, supra note 3, at 919.
 Id. at 922.
 Laura Nahmias, Issue Spotlight: Tort Reform, Cityandstateny.com Blog, (Nov. 14, 2011), http://www.cityandstateny.com/issue-spotlight-tort-reform/ The tort system in New York is costly and affects everyone—from insurance companies, doctors, patients courts and the public in general. Id.
 Id. The Legislature considered capping noneconomic damages in medical malpractice claims at $250,000.00 in 2010. This provision was removed from the bill, however, when it became clear that this would not pass. Trial attorneys are particularly opposed to these caps, and their influence on the legislative is substantial. Id.
 Mark A. Rothstein, Health Care Reform and Medical Malpractice Claims, 38 J.L. Med. & Ethics 871, 872 (2010).
 Nahmias, supra note 39; see also Joseph B. Treaster, Malpractice Insurance: No Clear or Easy Answers, N.Y. Times, Mar. 5, 2003, at C1, available at http://www.nytimes.com/2003/03/05/business/malpractice-insurance-no-clear-or-easy-answers.html?pagewanted=all&src=pm.
 Forehand, supra note 3, at 909.
 Id. at 926.
 Meruelo, supra note 1, at 286.
 Forehand, supra note 3, at 908.
 Nahmias, supra note 39.
 Gosset, supra note 19.