The Benefits of Pre-litigation Mediation

By lOuRDes sanCheZ RiDGe

Today, health care systems and its participants are constantly embroiled in conflict and the threat of litigation. A fast and inexpensive tool a provider can engage in prior to litigation is mediation. Whether it is a patient who is dissatisfied with a provider’s services, a disgruntled employee who complains about working conditions, or a physician who distrusts his/her business partner, health care professionals spend an inordinate amount of time, energy and money in attempting to resolve disputes. Once a complainant files legal action, the expenses of litigation climb substantially. Depending on the claim filed, certain statutes award the complainant (the “plaintiff”) attorney’s fees if he/she succeeds. As a result, not only is the provider paying for his/ her own attorney’s fees, he/she is also paying for the plaintiff’s litigation expenses. Keep in mind, that it is to the economic benefit of the plaintiff’s attorney to continue the litigation as long as possible in order to maximize his/her fees.

Mediation is an informal process where the parties select a mediator to facilitate a discussion with the purpose of reaching an agreement. The decision to reach an agreement lies solely with the parties and not the mediator. Mediators do not decide the outcome or casts blame. They facilitate the discussion where each party’s interests are clearly defined and guides the parties into resolving their differences. They help parties evaluate new options and aid in tailoring a solution that meets both parties’ needs. Because mediators are a neutral third party, direct confrontations between the parties are avoided.

Many of the root causes of litigation is a lack of communication and understanding. If a complaint or problem is not addressed promptly, effectively and compassionately, the complainant feels unheard and betrayed by the health care provider.

When a patient or family member feels ignored or not listened to, they become angry. They blame the doctor for their illness and question the doctor’s competence because they do not understand the medical process. This can lead to a medical malpractice claim or a complaint to the Pennsylvania Department of State or other governing organization. Many times, what the patient or family really needs is a chance to air their feelings and be provided with information. They need to feel valued and heard. Unfortunately, due to a myriad of factors, health care providers may not have the time or opportunity to provide patients and family members with the attention or information they need. There are also difficult patients and family members whom health care providers may want to avoid. If a health care provider finds that an issue is percolating and the patient or family member becomes increasingly agitated, the provider should consider using an unbiased mediator to facilitate a discussion between the parties to resolve the conflict before the patient or family member escalates the problem. Similarly, when staff become disenchanted or express feelings of discrimination, sexual harassment or unfair treatment, there is a great potential that those feelings will lead to litigation. Litigation in the employment arena can be very expensive due to several statutes that awards the plaintiff attorneys fees.

Over 90% of civil cases never see a jury because they settle before trial. Although discovering the opponent’s case and obtaining favorable decisions from motions filed may be advantageous when settling a case, the majority of the funds spent on prolonging the conclusion of a case will most often not be justified.

All civil actions filed in federal court and state court in the Western Pennsylvania require the parties to participate in an Alternative Dispute Resolution (“ADR”) process. The most frequently used ADR methods are mediation, arbitration and early neutral evaluation. In arbitration, both parties select one or more arbitrators who will decide the dispute. The arbitrator’s