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

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