Middle Ground Mediation Grows in Popularity, Especially With Medical Malpractice Cases

John Bagley says that, in some ways, mediation runs counter to what lawyers learn in school — and to how many of them approach what they do.

 

“It goes against our training as advocates,” said Bagley, a medical malpractice specialist with the Springfield firm Morrison & Mahoney who has gone from being to a skeptic about mediation to a proponent of the practice. “Trial lawyers generally tend to be aggressive and put their best foot forward; we like to win.

“So you need to re-invent yourself as a trial lawyer to be a good mediation lawyer,” he continued, “which any good lawyer is capable of doing, but you have to learn a different mindset that is involved.”

That mindset, he explained, is understanding that winning, in many ways, is a relative term, and that a plaintiff can win by not going for all the marbles and, conversely, a defendant can win, to some degree, by paying some amount, rather than risking loss of a much larger sum.

Such considerations — and blurred definitions of the terms ‘winner’ and ‘loser’ — lie at the heart of mediation, which certainly isn’t new, but is becoming an increasingly popular form of dispute resolution. The practice has gained widespread acceptance in such areas as divorce, personal injury, medical malpractice, construction, and even clergy sex-abuse claims — and has become an intriguing and lucrative profession for many.

“I love what I do,” said Paul Finn, president of Brockton-based Commonwealth Mediation and Conciliation, who mediated clergy sex-abuse claims in Springfield, Boston, and Fall River, and was named one of Lawyers Weekly’s lawyers of the year in 2003 for his efforts. “Mediation is different from traditional law — it’s congenial, not contentious, and there’s usually less pressure; let’s just say it was a good career choice.”

It has been for a number of retired judges and still-practicing attorneys, as well. Indeed, many lawyers in the region blend some mediation work with their legal practice. For others, mediation has become a full-time venture with steadily increasing workloads.

That’s because, as Finn and others told The Healthcare News that mediation saves people time and money, while also reducing the emotional toll that litigation often takes. It also allows parties to maintain a measure of control over their fate, something that is lost whenever a case is turned over to a jury.

The Healthcare News looks this month at the continued growth of mediation, and how it is often viewed as the first, best choice for parties with a dispute to resolve.

Making a Case

Bagley says that many mediators will say right up front that a good mediation is one where both sides walk away somewhat displeased, said “That’s because you never get the number you’re looking for — but it’s always a number that, from the plaintiff’s side, you can’t afford to walk away from, and, from the defense side, you can’t afford not to pay.”

Finn agreed, and said that while mediation does go against the grain for some lawyers, in most cases it enables advocates to do what they were hired to do — obtain the best outcome for their client.

“I learned two things in law school, he said, “to represent the client to the best of my ability and to make money doing it. But the first was the top priority, and mediation is often the best answer.”

Tracing the origins and evolution of mediation, Finn said the practice has been around for decades, although in some cases it wasn’t called mediation.

The practice started gaining more widespread acceptance in the mid-to late ’80s, he said. That’s when plaintiffs’ lawyers, noting statistics about how many (or, to be more precise, how few) cases that went before juries yielded large settlements for their clients, began looking for a less-risky alternative to the courtroom.

“In the late ’80s and early ’90s, juries became extremely stingy when it came to finding for plaintiffs,” he said. “There were a series of studies done on it, because lawyers had been complaining about it for years, and they wanted to make sure that what they were saying was true; the studies backed up what they were saying.”

One study showed that Massachusetts ranked 49th out of the 50 states when it came to the size of jury awards, he explained, adding that another study looked at jury verdicts in 40 densely populated counties across the country. The four in the Commonwealth that were involved in the analysis were in the bottom five in terms of dollars awarded per case and other measures.

“It was a staggering statistic,” he said, adding that still another study provided more proof. “It showed that if you tried a civil case in Massachusetts, you had a 75{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} to 78{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} chance of losing your claim.

“Plaintiffs’ lawyers looked at all that and said, ‘we have to find a way to make sure that our clients get something as opposed to getting nothing 80{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} of the time’,” he continued. “And that’s where mediation stepped in.”

The practice started coming into vogue as Finn was growing his law practice, which he started with partner Bob Berkes in the Fall River area in the late ’70s. Having watched many lawyers and retired judges successfully transition to mediation work, the two partners decided to add it to their list of services.

“We quickly figured out that this wasn’t going to work unless someone did it full time,” Finn told The Healthcare News. “So he took over the law firm and I ran the mediation firm; he’s been kicking himself about it ever since.”

That’s because Finn has grown Commonwealth Mediation into the second largest firm of its kind in the state, behind the American Arbitration Assoc. He solidified his reputation in the field with his successful mediation of several clergy sex-abuse scandals, starting with the Diocese of Fall River in the early 1990s. He then handled a case in Springfield in 1993, and larger cases over the past few years, including the $85 million settlement involving the Boston Archdiocese and 552 claimants.

That case was extraordinary in every way, he said, including the dollar amounts, the length of the proceedings, the number of lawyers involved, the press coverage, and the emotional testimony presented by claimants. In the end, however, the basic mission was the same as it is in all mediation cases — expediting a settlement that both sides in a dispute can live with.

“Mediation came about as a private-sector alternative for short money, and when you think about it, in the long run, it really is short money,” he said. “This alternative will resolve their claim sooner rather than later, and you have some control over the outcome, both on the plaintiff’s side and the defense side.”

A Big Deal

Peter Adomeit, a professor of law at the Western New College School of Law, agreed. He said there are a number of factors that have contributed to the growth of mediation, which he practices on a part-time basis.

He said overcrowded courts play a role, because they add time and, therefore, expense to the task of bringing a case to trial. There is also that important element of control.

“People don’t bring in a mediator to resolve a dispute,” he explained, adding that in some courts, parties are required to explore mediation before taking a dispute to litigation. “You bring one in to assist you in arriving at a negotiated settlement; there’s a big difference — you maintain control.

“The litigation system is a blunt instrument,” he continued. “It is not perfect, it has become increasingly costly in terms of the expense to operate within the system — to hire a private lawyer. And there’s an additional cost in damaged relationships between the parties in a litigation; it makes people upset.”

Michael Coyne, a litigator with the Springfield-based firm Bacon & Wilson, told The Healthcare News that he has seen a dramatic rise in the use of mediation over the past several years. He said it works for nearly all types of cases, but the key is picking a good mediator, one who has a background in the field in question and can ‘knock heads’ when both parties are stubborn.

“It’s a system that is effective only when you have a good mediator,” he said. “I’ve seen some attempts at mediation come apart because the mediator didn’t fully understand the issues or couldn’t move the parties to an agreement.”

When asked about the circumstances under which mediation works, Bagley said it might be easier to list those in which it doesn’t.

“I’ve learned that even the most hotly disputed, complicated cases can be resolved through mediation,” he said. “A lot of people would have predicted otherwise; it’s not just simple, straight-forward cases that can be settled in this manner.”

Coyne agreed. He said that years ago, the practice was generally restricted to personal injury and malpractice cases. It is now being employed for complex patent and trademark cases, and even by banks trying to resolve bad loans.

Bagley said that he now attempts to mediate between 10 to 20 disputes a year, most of them medical malpractice cases, and that in 80{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} of those instances, it is successful. He said mediation works in “med-mal” cases, as they’re called, for the same reasons it works in all specialities.

In other words, both sides can effectively cut their losses.

“Mediation is now as much a part of what we do as going to court,” he said, adding that, while lawyers for both the plaintiffs and the defense enter any case with the intention of winning, they often soon realize that the best course of action is to minimize risk.

“Generally, the timing of mediation occurs at the end of the discovery period, rather than earlier, although it does happen early in the process,” he explained. “It’s the nature of the beast that, at the beginning, both parties are so distrustful and so attached to their side of things that they need the discovery period to separate fact from fiction.

“Once you get through that, the reality of trying the case sets in, and that’s why so many cases go to mediation at that point,” he continued. “In other words, there’s no time for bravado and bluster and posturing; now, you’re staring at the prospect of a trial, which, in the civil context, means winner takes all, and someone’s going to walk out of that courtroom very disappointed.”

With mediation, there are either two winners or no winners, depending on one’s point of view, said Bagley, noting that in medical malpractice cases, where insurance companies hold the purse strings, middle ground is often better than risking a big loss.

“The medical malpractice insurers need to make sure that they defend enough cases, especially the ones they feel are non-meritorious, so that the message is continually sent that it’s no easy ride,” he said. “The cases we take to trial, we’re still winning on a nine-out-of-10 basis, and I don’t think there’s any other type of litigation you can say that about.

“But mediation has become a very attractive alternative in those cases where there is a good deal of risk,” he continued. “With mediation, you are pushed or pulled into a direction that you didn’t want to be in when you started, but it’s still not a bad place.”