PREPARATION
FOR AN APOLOGY
by
David B. Harwi, Esq. and George Reath, Jr., Esq.
|
Mediation
provides opportunities for resolution of disputes not originally
contemplated by the disputants and not within the usual parameters
of an adjudicator’s authority. An apology is an example
of these opportunities. It would behoove the disputants and
their counsel to explore these solutions before they might turn
to bite them.
An example illustrates our thesis. Plaintiff-patient sued defendant-doctor
for malpractice associated with an operation that the doctor
performed on patient. The complaint demanded money damages for
the injury caused by the malpractice. Plaintiff’s counsel
was to be compensated with a percentage out of the proceeds
of any settlement or judgment. Plaintiff’s counsel had
already invested considerable time and money in the discovery
process to bring the case to the point at which a substantial
money recovery was possible. In the mediation defense counsel
was nowhere near the dollar amount which would satisfy plaintiff’s
demand with the doctor firmly insisting that she had done nothing
wrong despite evidence being developed to the contrary. In caucus,
a private meeting among the mediator, plaintiff and his counsel,
the plaintiff revealed to the mediator that he wanted defendant
to take responsibility for her mistake and apologize. If she
did that, money was irrelevant. Plaintiff’s counsel was
taken aback when he realized that his client’s desire forced
him to confront his ethical responsibility to represent his
client’s desires and the effect upon his fee if a non-economic
settlement were reached.
When the mediator met with the doctor and her counsel (who was
being compensated by the doctor’s malpractice carrier),
the mediator informed them of the patient’s willingness
to terminate the litigation if the doctor explained what went
wrong, assumed responsibility for her mistake and apologized.
Defense counsel saw this as a great opportunity to terminate
this expensive litigation with a significant potential liability.
Yet the doctor was adamant in her refusal to acknowledge and
apologize for a mistake.
Discussing these possibilities prior to the commencement of
this litigation might have avoided these difficult issues
© Triage Mediation Services Inc. 2000
