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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 malpractice cases. Some cases are only about money; the plaintiff does not want to interact with representatives from the hospital and is focused exclusively on obtaining sufficient funds to take care of her family. However, many cases are about both money and being heard. Plaintiffs want to recount what they experienced and want to ask questions; hospital representatives want to explain what happened and even to apologize. Focusing only on a dollar agreement limits the salutary effects of mediation. At the beginning of mediation, one does not know how fully the process will be used by the participants at the table. But given the range of concerns the parties may want to discuss, the decision to focus only, or primarily, on money should be made by the participants, rather than being predetermined by the mediators’ method of conducting the mediation. In the ADR Project model, mediators used a range of facilitative skills to assist the participants to share information, to ask and answer questions, and to express feelings. Participants were encouraged to talk with each other during both the initial and the later joint sessions. The mediators’ 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. ADR Project mediators did not see their job as evaluating legal claims but were prepared to engage in “reality testing” to help the participants be more realistic about the strengths and weaknesses of their cases. Retired judges and practicing trial lawyers rarely have sufficient training in the facilitative techniques that tend to be most effective at discovering underlying interests and drawing out information useful for changing hospital systems and policies even if it is irrelevant to questions of liability. Nor are they likely to have patience for or comfort with the expression of strong emotions by the parties. Drexel University College of Medicine established a mediation program in February 2004. While the program is described as “Rush-style,” it differs in significant ways from the Rush model. Both patients and physicians attend and speak, the focus appears to be on repairing the physician-patient relationship, and Drexel’s general counsel, Carl Tobey Oxholm, reports that Drexel is considering offering mediation much earlier in the process, perhaps even before a lawsuit has been filed.
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