Illinois Mediation Attorneys
Upon completion of the investigation, pleadings, and discovery phases, the next phase of the litigation is pre-trial mediation or settlement. These highly complex medical legal cases take time and expense. The time involved can be years. The litigation expenses can be hundreds of thousands of dollars. It is important for the attorneys and litigants to be aware of these facts of life related to medical malpractice litigation.
Medical malpractice litigation is a highly complex and risky business for the parties, the litigants, and the attorneys. It is important to be very careful in each phase of the litigation and judicious regarding time and litigation expenses. The days of filing a lawsuit and then getting a quick settlement are over. Part of the reason for the difficulty in settlement and the reluctance of defendants to settle cases is the internet. All settlements are entered into a database. All physicians who settle cases will have their names placed into a database, on the internet, for all the world to see. This has created a reluctance, if not an impossibility, to get physicians to settle. Moreover, because this is a professional liability case physicians have the right and requirement to consent to a settlement in writing. This means that in most cases the insurance company cannot settle the case without the approval of the defendant doctor in writing.
In the past several years, pretrial mediation has become more popular. This is a process where a professional mediator will bring the parties together to conduct a pretrial settlement mediation. If the defendants and their insurance companies agree to a mediation, that is a step in the right direction towards a settlement. It does not guarantee a settlement, but it is an indication that the defendant doctor/hospital and their insurance company are at least willing to talk about settlement.
It has been my experience that it is not productive to conduct a mediation unless and until the defendant and its insurance company has reasonable authority to settle prior to entering into a mediation. For the plaintiff to go to a mediation, put their case forward and have no offer, or a minimal offer, is counterproductive for the plaintiff. Accordingly, it is prudent for the plaintiff and his/her attorney to have an offer on the table before they attend the mediation. At the mediation the parties can negotiate, compromise, put forth their theories of liability, their theory of defense in front of a neutral professional, arbitrator or mediator.
If all parties go into the mediation with a good faith spirit and willingness to negotiate, the likelihood of settlement is optimistic. However, if one or more of the parties or insurance companies go into the mediation with a hidden agenda, then the likelihood of settlement is greatly reduced.
In a settlement situation parties must compromise. The plaintiff makes the first demand at a high enough number to allow room for negotiation. The defendant makes their first offer within a reasonable range to encourage further negotiations. Occasionally the plaintiff’s demands will be so high that the defendants will refuse to negotiate any further until that demand is reduced. And, of course, it is not a good negotiating practice to bid against yourself. So reducing that demand, without a reasonable offer, is not the best thing for a plaintiff to do. On the other side of the coin, occasionally defendants will come into the mediation with little or no offer. Under those circumstances the plaintiff and his attorney stand their ground. It is classic bad faith negotiations for a defendant to offer little or no money at the outset. Those type of diminished offers can be insulting to the plaintiffs who have lost ones or have sustained injury. On the other hand, it can be considered bad faith negotiating if the plaintiff makes a demand that is so high that it is unreasonable and far beyond what a defendant or insurance company would pay.
The Law Offices of Henry Phillip Gruss has conducted many mediations over more than 30 years of practice and we have settled many, if not most.
It is important to note when discussing litigation costs that half of a day of mediation can be as expensive as $5,000 for some mediators. A full day can be as expensive as $10,000. A typical mediator makes somewhere between $1,000 and $5,000 per mediation. Accordingly, judicial use of mediations is recommended.
Settlements do not occur as frequently in medial malpractice litigation as they do in other litigation. However, if you have good legal representation, good facts, good law in support of those facts, good preparation, cases can and do settle.
CONTACT CHICAGO BIRTH INJURY ATTORNEYS
Henry Phillip Gruss
311 West Superior Suite 314
Chicago, Illinois 60654