Page 14
grief without becoming hostile or defensive. (8) The physicians directly involved in the adverse event were not at the table. While we would have preferred that the physicians involved in the events participate in the mediation, they chose not to. Their non-participation raised questions for families who were looking for indications that the doctors cared about what happened. In one case the chief of medicine explained that he had spoken with the former resident that morning and had learned he was still haunted by the memory of what had gone wrong and still grieved for the patient. Undoubtedly it would have been painful for the Rush University Medical Center (“Rush”) is a self-insured 1,000 bed academic facility in Chicago with 1,200 physicians on its staff. Each year Rush is a defendant in 30 to 35 medical malpractice cases. Rush established a mediation program in 1995 to provide a more predictable procedure for settlement of medical malpractice disputes and to lower defense costs (Brown 1998). As of 2003 Rush had mediated 80 cases and reached settlements that ranged from $21,500 to $15,000,000 (Brown 2003, Cooley 2002). More than 80% of the cases were successfully resolved, most in two to three hours. Rush found that it was settling cases at monetary levels consistent with its established reserves and that its defense costs have been reduced by more than half (Brown 1998). The Rush model is what mediators would call “evaluative mediation” (Riskin 2003). The mediators focus on the strengths and weaknesses of the parties’ positions, propose a value range for settlement, and spend little time in joint session. Rush maintains two panels of neutral mediators, one comprised of retired judges and the other of experienced plaintiff and defense medical malpractice attorneys. Typically the parties are already deep into the litigation process, having completed considerable discovery by the time of mediation. Each side has a clear understanding of the other side’s case. These mediations, which typically occur several years after filing, feel familiar to the attorneys because they resemble judges’ settlement conferences. The Rush mediations begin in joint session, where each side makes a brief opening presentation. Usually the attorneys speak first and then the parties are given an opportunity to make a presentation. However, as of November 2003, no party had chosen to speak (Brown 2003). The mediators then meet with each side separately in a caucus, shuttling from one side to another. If the parties agree on a settlement figure, they reconvene in a joint session, affirm the terms of the settlement, and exchange personal comments. Originally the hospital representative offered an apology to the plaintiff only after a settlement agreement. In 2003, Rush began to include an apology of sympathy in their opening statement to help set the tone for the mediations and build trust. Neither the opening nor post-settlement apology includes an acknowledgement of liability. Only if the case has been settled does the hospital inform the patient or family members of any changes in practices or procedures that have been made in response to the event (Brown 2003). Our focus was on helping the parties gain an understanding of their own and each other’s interests, assess and reassess the strength of their positions, and engage in joint problem-solving. make an accurate prediction of outcome. Counsel or parties may withhold facts that might be valuable at trial should mediation be unsuccessful. In addition, the information presented at mediation may not be admissible at trial. Second, if the mediator is evaluating a case to predict the outcome in a courtroom, participants will spend a good deal of time and energy in an adversarial posture, trying to “win” their case instead of working collaboratively towards a solution. Third, evaluative mediators are likely to focus on types of information relevant to a determination of liability rather than on information that would aid in shaping a resolution that satisfies both economic and non-economic interests of the participants or contributes to patient safety. Because of this focus on money, evaluative mediators too often fail to help the participants realize the broader, often healing, benefits of mediation. Money is, of course, significant in most medical