Debunking Arbitration, Mediation Myths in Health Care Litigation

In my 25 years as a trial lawyer, I have often heard the same comments from attorneys and clients on the efficacy of mediation and/or arbitration in the resolution of litigation. Regarding mediation, I have often heard that no one is ever satisfied with the results of a mediation. Regarding arbitration, the mantra has been: At arbitration, the arbitrator “splits the baby” in an effort to keep all the parties happy. In this article, I would like to debunk these “myths” by highlighting some of my experiences as a trial attorney for the defense in both mediation and arbitration.

First, however, I would like to explain what I view the role of a defense attorney to be especially in the setting of health care litigation. I have always believed that my role in this area is to be a facilitator for resolution. The defense attorney must look at a case honestly and with the advice of experts determine whether the case is defensible or not. That determination puts the matter on a course to advance resolution. In cases where jury trials were not optimal for resolution, I always considered mediation as a vehicle for resolution. However, my clients often initially rejected that path because of a sense that we were giving away the case.