Attorneys in ever-increasing numbers are the targets of those who claim to have been injured by their conduct. In most but not all cases, attorneys have insurance that covers such claims. Many professional liability insurers maintain provisions in their policies that waive or modify the deductible if the insured gives prompt notice of a potential claim. The idea behind such a provision is to allow an early resolution of the claim before litigation begins. Some insurers now include policy provisions to encourage their insureds to participate in mediation before or after suit is filed. In both instances, mediation has proven to be an effective, efficient, and economical way to resolve professional liability disputes (PLDs) with a minimum amount of acrimony and maximum use of the time of the parties, their lawyers, and the insurance adjusters.
Selection of the mediator.
Mediators come in all sizes and shapes but are predominantly retired judges and retired or practicing attorneys with various degrees of training and experience in mediation. Select a mediator who has both training from a respected institution and also experience in mediation.
Just because a judge may have officiated over hundreds of cases while on the bench or an attorney may have litigated numerous lawsuits, this experience does not always make them qualified mediators. Training by a respected institution teaches potential mediators the way effective mediations are conducted. Mediations are neither traditional settlement conferences nor arbitrations; rather, mediations are a highly developed type of negotiation that allows parties to come to a resolution without the mediator making the decision as to what the resolution will be. Excellent mediators are excellent negotiators. Experience is the other qualification of an effective mediator. The mediator need not be an expert on the legal issues related to the dispute. Although healthy debate on the legal issues involved is often helpful to the mediation process, most effective mediators concentrate on what will satisfy the needs of the parties, not which legal precedent must be followed, and encourage parties to think of innovative ideas that result in resolutions agreeable to all concerned.
Preparation of the attorney
Attorneys who take the mediation process as seriously as they do preparation for a crucial hearing or trial will help lead the process to a successful resolution. However, preparation for mediation and preparation for trial require different attitudes. In litigation, the attorney must focus on the opposition’s weak points and the strengths of the client’s case, with the emphasis on winning. In mediation, the lawyer also must know the strong and weak points of the case. However, the emphasis must be on compromise and resolution. The mediation attorney must look objectively at the client’s case, access the risks inherent in the case based on the facts and the law, and ask, “What resolution of this dispute makes good sense?”
Sometimes, it might be wise for an attorney who is not a hard-hitting litigator to represent a client in mediation. A take-no-prisoners litigator may have difficulty compromising to resolve the dispute; the client may follow the attorney’s lead and also be unwilling to compromise. This is especially true in PLD cases where clients are absolutely convinced that they have done nothing wrong, that their reputation as a professional is at stake, and that there is no reason to settle a claim that had no merit from the beginning. Mediation attorneys must first prepare themselves to compromise and then prepare their clients to do so.
Preparation of the client
Mediation is generally consensual and voluntary. No one is required to reach an agreement in mediation. If an agreement is reached, it will be what the parties have negotiated, not what a judge or arbitrator ordered. Generally, in a professional liability dispute, clients are educated, experienced professionals who may be convinced that no error or omission exists. Defendant attorneys in PLD cases usually believe their former client is seeking revenge for losing at trial and is looking for somebody to blame.
To prepare the client for mediation, litigation risks must be explained, and litigation costs must be carefully calculated and delineated. The client’s level of stress and anger along with physical well-being must be explored. Sometimes, recommending that the client read a particular book or article can be helpful in assisting the client to achieve the proper state of mind for mediation; one such book is Forgive and Forget: Healing the Hurts We Don’t Deserve by Lewis B. Smedes.
The mediation attorney should plan on spending several hours or more preparing the client for the mediation process, setting aside anger and bringing reason to the forefront. Clients should be encouraged to think outside the box and take an active role in the mediation process by listening to the other side and to the mediator, telling their side and relating insights and thoughts, and avoiding negative reactions to everything the mediator suggests for consideration.
Preparation of the insurer’s adjuster
Although the majority of insurance adjusters understand, appreciate, and encourage mediation, some believe settlement is for sissies. They offer the cost of defense as they perceive it, then sit with their arms folded, backs straight, eyes looking straight ahead, and exclaim that the defendant is as innocent of malpractice as one can possibly be. This is the group that requires substantial preparation for the mediation to be meaningful and to avoid provoking plaintiff and counsel to leave the mediation table in a huff, pronouncing,“ See you at trial!”
The carrier’s attorney will likely know the true settlement policy of the insurer. In most cases, it involves a pure and academic risk analysis. However, carriers, even the most financially successful ones, understand the value of settlement compared to risking a large jury verdict at trial. On some occasions ,the carrier’s attorney may seek the assistance of the carrier’s executives in helping prepare for mediation. Let’s face facts: The higher up the executive ladder, the more results oriented the executive. If a careful risk analysis indicates that a reasonable settlement is appropriate, but the adjuster thinks otherwise, a senior executive assisting in the mediation preparation can be of immense help.
Preparation of the mediation brief
Although every mediator has a different style, many require each party to submit a mediation brief. Frequently, the briefs are designated as confidential and provided only to the mediator, allowing parties to candidly present their positions to the mediator, who can properly prepare for the mediation session. A typical mediation brief contains a short, concise statement of facts, controlling statutory and case law, a statement regarding prior settlement attempts, and the status of the litigation if suit has been filed. Often, briefs are limited to no more than 10 pages.
A mediation brief differs from a trial brief or summary judgment motion in several respects. It is designed not to persuade but to educate the mediator about the facts of the dispute. The better informed, the better job the mediator can do to bring the parties together. The statement of the law need not be presented in the same detail as a trial brief. It is usually sufficient to point out only the controlling law on the subject. A dissertation resembling a law review article is not necessary or appropriate. In spite of the mediator’s creed to remain objective, mediators form thoughts about the case from the mediation briefs. Time spent carefully preparing the mediation brief pays off when the mediation session takes place.
Participation in the mediation.
Observe the mediator’s style as the case is discussed. Some mediators like to hear only from the parties. Others want to hear only from the attorneys. Still other like to hear from both. Some mediators like to keep the parties together in the same room, while others separate them from the first minute of the mediation session.
Whatever the mediator’s style, it is important that parties and their attorneys participate wholeheartedly to achieve a resolution. This is especially true when the mediator breaks the parties into separate groups and speaks with each group individually, often engaging in shuttle diplomacy. The mediator needs guidance; the more guidance given by the clients and the attorneys, the more likely a resolution can be reached. On several occasions, mediators have succeeded in getting opposing parties to talk to each other without lawyers present and achieving a resolution each can live with.
Mediation of professional liability disputes works. However, resolution does not happen without the participants, lawyers and clients alike, being prepared and participating fully in the process. The time spent preparing is well worth the effort when all parties walk away from the mediation session equally pleased with the resolution they have achieved, saving money, time, effort, and wear and tear on their lives that would otherwise be experienced in litigation and trial.
Benjamin S. Seigel is a shareholder of the Los Angeles-headquartered firm of Buchalter Nemer. Seigel is an experienced mediator in disputes covering a wide variety of legal issues, and a frequent author and lecturer on mediation. His mediation services are made available through the auspices of the American MediationAssociation, Inc. He can be contacted at .
