Alternative Dispute Resolution
An Insider's Look at Medical
Malpractice Mediation
A Conversation with Mediator W. Scott Sonntag
Q. How do we as plaintiff’s counsel go about selecting a Mediator?
A. Tere are two simple rules for selecting a Mediator in my judgment: First, you must agree to a Mediator who has currency
with defense counsel and most importantly, the defendants’ insurance companies. It does you no good to wow the defense attorneys only to have the insurance carrier(s) have no confidence, little confidence, or really no knowledge of the Mediator. In every Mediation the defendants’ insurance carriers come in with a number that they consider to be the highest number they will pay to settle the case. It is the Mediator’s task to first identify that number and then, to the greatest extent possible, persuade the defendants’ carriers that they must pay more than their self determined “highest amount.” Terefore, your Mediator must be someone who has the ear and the confidence of the insurers. Second, never agree to a Mediator you do not personally
know. Willingly or unwillingly, consciously or subconsciously, it is human nature to lean a little on the side of people we know and like. In order for the playing field to be completely in balance, if the Mediator is well known to and friendly to the defendants’ counsel and their insurers, he or she had better be someone you know and like. Tese intangible qualities and factors cannot be underestimated. In many ways a Mediation, when effective, is a fairly intimate and open exchange and if the Mediator is too friendly with one side as opposed to the other, this can damage your opportunity to achieve the best result.
Consequently, if a Mediator is proposed to you and you
do not know him or her, your response should be simply: “I don’t know him, let’s select someone we both know and respect.”
Q. How much documentation should we provide the Mediator prior to Mediation?
A. In my judgment, you should provide, or need provide, nothing more than a concise, persuasive and comprehensive Mediation Statement. It should address three key issues: standard of care, causation and damages. If you want to gain more credibility (and you should), identify your case’s weaknesses and as well as its strength. A one sided cheerleading expose is the norm and is the expected norm. Te Mediator is most impressed when he or she receives a Statement in which plaintiff ’s counsel openly recognizes that there are weaknesses to his or her case as well as strengths. Likewise, when the defense does this it is well received by the Mediator. As far as attachments, you should include only those documents that you believe are key to your case. Te Mediator is not a trier of fact. He or she should not read deposition transcripts and volumes of medical records and you should not pay to have the Mediator read these materials.
Q. Are opening statements a good or bad idea?
A. In my experience, there are two main reasons to refrain from giving opening statements at the beginning of a Mediation session: 1. Tey are a waste of time; and, 2. More often than not they increase rather than decrease an aggravating or hostile atmosphere. You do not have to tell the defense your case; they know it. Te defense does not need to tell you its case; you know it. Otherwise, you would not be at Mediation.
Trial Reporter / Fall 2010 25
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