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Should I bother with mediation in a medical malpractice lawsuit?

With apologies to F. Scott Fitzgerald, medical malpractice is different from most civil litigation. These cases are always about some form of human suffering, but they are also about a broken bond between physician and patient. That relationship is built on trust, and if something goes wrong -- or if it looks as if something has gone wrong -- the patient feels betrayed.

A lawsuit is by definition adversarial. The plaintiff/patient and the doctor/defendant, once allies, are now duking it out, if only on paper. There is no hope of reestablishing that trust, and the sense of betrayal can easily change to outright anger. The plaintiff is now determined to get satisfaction, to make the doctor pay, to make the doctor feel as awful and angry as the plaintiff does.

Mediation could help here.

The process is simple. The parties meet with a neutral facilitator and try to resolve the dispute in a way that is acceptable to both sides. In a settlement conference, the people in the room have a vested interest in the outcome. In mediation, the mediator is focused solely on finding common ground and keeping the meeting on track. An objective third party can often see a solution that plaintiff and defendant are too angry or frustrated to see on their own.

If they find no solution, the case moves forward to trial. If they are able to find common ground, the parties sign a statement prepared by the mediator and go about keeping their promises. Most of the time, mediation is not binding; if new information comes to light or the situation changes somehow, the parties can set the agreement aside.

Mediation serves a vital purpose in litigation, especially in medical malpractice cases: The plaintiff gets to tell his story. Often, all a patient wants is to tell his doctor just how much his life has changed as a result of what he believes was the doctor's mistake. Having a mediator there provides a sense of security and fairness and, importantly, a sympathetic ear.

For the doctor, this is an opportunity to express his own frustration that things did not turn out as expected for his patient. In some cases, it's an opportunity for the doctor to apologize. The doctor knows, too, that the mediator is sympathetic to his story as well.

The mediator offers sympathy free of advocacy, and mediation allows the parties to remember not just that they trusted each other before, but why.

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