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Mediation as an Element of Tort Reform

Tort reform is frequently touted by political candidates across the country as a means to rein in health care costs that many perceive as spiraling out of control. Many pundits on both sides of the aisle feel certain that capping medical malpractice damages, for instance, would magically save us all billions in medical costs.

There are other, more simple means to help us sort through the thousands of malpractice cases filed annually. Mediation is a process by which the parties involved in a malpractice matter, including patients, medical care providers, and their attorneys, meet with a neutral mediator to try and reach an agreement regarding compensation. Such meetings usually take a day or so, and anything discussed in mediation is not admissible in court. Parties who agree to mediation but do not find it helpful may always abandon the process and take their matter to trial.

This seems like a logical process, yet very few states use medical malpractice mediators.

Some attorneys, for example, never tell their clients mediation is even an option in their case. This is because many malpractice attorneys work on contingency, earning a percentage of the settlement amount in a case, and mediation tends to yield smaller settlements than trial verdicts. Even defense attorneys, who usually bill hourly, see a smaller financial windfall from mediation settlements.

Patients involved in malpractice suits need to look out for their own best interests where mediation is involved. Those facing high costs in terms of time, money and stress in a medical malpractice case would do well to ask their attorney if mediation makes sense in their case.