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Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer

Why Would I Consider Mediation in a Medical Malpractice Case?

 

A:

Mediation allows you the opportunity to try and negotiate your case during the litigation process, before trial.

One of the significant advantages of mediation is that if successful, you will avoid the need to go to trial and wind up with an uncertain result from a jury verdict.

In order to participate in a mediation which is a negotiation with an impartial judge who attempts to negotiate for both parties, each side must contribute to the mediator's fee. That fee can be substantial. Many times the mediator charges $600 per hour and that fee would then be split among all the parties who participate.

The mediator's goal is to put pressure on both sides to understand the risks and benefits of settling now compared to the unknown risk of going to a verdict.

During a mediation each side presents their view and vision of the case. As an attorney who only represents injured victims, I present our strongest position and explain why we believe our case is worth a certain amount of money. The defense, on the other hand, explains their defenses and raises as many objections as they can to justify why our case is not worth as much as we believe it to be.

Then the mediator breaks us into two different rooms and conducts shuttle diplomacy between our room and the defense room.

The mediator shares information with us explaining the defense's position and why they believe they are right and we are wrong. Likewise, we explain to the mediator why we believe we are right and the defense is wrong.

The mediator then returns to the defense room in order to explain our position and to see whether the defense is willing to increase their offer. If they are willing to increase their offer, the mediator will then return to our room and advise us what the current offer is and whether or not there is any additional room for negotiation.

At some point along the negotiation process, one party will draw a line in the sand and either claim that no more additional money will be offered or that the offer is insufficient to settle the case.

On the other hand, if the parties reach an agreeable settlement, then the lawsuit will be settled right then and there.

In cases involving children and death cases, although the parties will have agreed in principle to settle the case, that type of lawsuit will require court approval to be finalized.

Mediation is also useful in an attempt to limit expenses and the need for lengthy trial.