Your medical malpractice case has been going on for two years already.
You sued your doctor claiming that he was careless.
You claimed that his carelessness caused you injury.
You also claimed that your injuries are permanent and disabling.
Your doctor denies all of your claims.
He says he did nothing wrong.
He says whatever he did didn't cause you injury.
Then, to make matters even worse, he says your injuries aren't that bad!
Your lawsuit went the distance.
You had the discovery phase where your attorney exchanged lots of medical records with the defense attorneys.
You appeared for pretrial questioning known as a deposition.
Your attorney got to question your doctor too.
And still, the defense refused to negotiate claiming they weren't going to pay you a penny.
"You think we did something wrong? Let a jury tell us that!" the defense attorney tells your lawyer.
After two years your case is finally ready for trial.
Your case comes up for a pretrial conference with the judge who is supervising your case.
The judge asks each attorney what their settlement position is.
He wants to know if there's a chance that your case can be settled before he sends your case out for trial.
"Judge, we have approached the defense multiple times, and each time they tell us they're not willing to negotiate. I think we just need a confirmed trial date," your attorney says.
The defense attorney chimes in...
"Now hold on there counselor...our position has changed a bit and I think there may be an opportunity to try and resolve this case before going to trial," the defense attorney says to the surprise of your lawyer.
Knowing the defense refused to negotiate up till this point, your attorney has started preparing your case for trial.
He has his experts available in the next few weeks should your case go to trial.
He knows what exhibits he needs to have enlarged to use for trial.
He's already started to prepare a memorandum of law for the judge.
What is the best strategy for your attorney?
Should he start to negotiate with the judge and the defense lawyer?
Should he take a hard line position that because they made you go through two years of litigation, you're not going to start negotiating now?
Before your lawyer has a chance to formulate a strategy after being surprised at the change in the defense lawyer's position, the judge wants to speak to each attorney separately. He wants to get a real idea of where each attorney is from a negotiation standpoint.
The judge wants to speak to the defense lawyer first.
Your attorney is asked to wait outside the conference room.
A few minutes later, the defense attorney walks out and tells you to go in.
The judge wants to know what your settlement position is.
"Are you willing to negotiate?" he wants to know.
"Judge, we've always been willing to negotiate, but the defense has told us repeatedly that they wouldn't settle this case under any circumstances. I haven't made a demand and they haven't offered a dime," your lawyer says.
"Well what's your demand on this case counselor?" the judge asks your attorney on the spot.
"My demand on this case is $5 million dollars," your lawyer says with some level of confidence.
Yet your lawyer knows full well that your case isn't worth $5 million dollars.
He knows that he has to make a very large demand in order to get the defense to start negotiating.
There is one big problem that can arise if we make a demand that is so far out of the ballpark.
The problem is that the defense may think we're being greedy and don't really want to negotiate, especially if your case is only worth a small fraction of that amount.
The judge tells your attorney that he has thirty other cases to deal with that morning and doesn't have much more time to help you try and resolve your case. He thinks the defense will want to start negotiating but feels they'll need more time to come to the realization that they are going to take a beating if they go to trial and take a verdict. The only way to convince them is either to go to trial or go to mediation.
"Are you willing to mediate this case?" the judge asks your attorney.
Before I go further, I should tell you what mediation really is.
That's when a retired judge meets with each attorney to have a lengthy settlement conference.
Each side presents to the judge their best position of why they believe they have a better case than their opponent.
Then, each side talks to the judge separately while the judge tries to pressure each attorney about the risks associated with going to trial. He puts pressure on your attorney and also puts pressure on the defense attorney. The lawyers know this will happen during this negotiation. It helps facilitate settlements.
But at the same time, there will come a time when either side may draw a line in the sand and claim that unless X happens, the settlement discussions will go no further. "Judge, I'm not paying another dime beyond what we already offered. If they want that substantial amount, they can have it. Otherwise, we're going to trial," the defense attorney may tell the judge.
Maybe your attorney presents the straw that breaks the camel's back...
"Judge we've been at this for three hours now. They've come up in small tiny increments. They're obviously not serious about trying to settle this case for a fair value and at a number that is realistic. We on the other hand have been more than reasonable. Unless they come up with an additional $250,000, this discussion is over," your attorney might say.
Mediation is really nothing more than settlement discussions that take place in a private conference room. Each side contributes toward paying for the judge with the hope and expectation that both sides can reach a settlement during the mediation process.
But let's get back to the question I raised in the title of this article...
Can your attorney tell the judge that you have no interest in participating in mediation?
The answer is yes, he can.
"Judge, with all due respect, I don't need to pay thousands of dollars to a mediator to try and negotiate. We're adults here. If they are serious about negotiating, let them pick up the phone and make an offer. Then we can have a meaningful discussion among the attorneys who know the details of this case," your attorney might say.
In that event, the judge might give both sides time to speak to their clients to decide what their settlement strategy will be and to return to court in a few weeks to report on any progress.