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Mediation before a Medical Malpractice Trial

Your medical malpractice case is scheduled to begin trial in just two weeks, and at this time, the defense calls your lawyer up and says they want to mediate the case. Should you go along with this mediation request and see what they have to offer, or should you deny it and go ahead with the trial?

What is Mediation?

When the defense says they would like to mediate your case, it means they want to initiate settlement negotiations. However, they do not want to do it privately, one on one. They also do not want to wait until trial and do it in front of a judge. The defense wants to get you into a private negotiations session, where both parties have the opportunity to go before an impartial judge, who will listen to each side. The mediation process is an opportunity to have settlement negotiations privately. An impartial mediator will be hired, who is agreed upon by both parties.

How does it Take Place?

The mediation session could last almost the full day, where each party will have the opportunity to speak to the mediator and explain their side. You will have a chance to explain, why you believe your case is worth certain amount of money.

The defense to this will turn around and explain to the mediator that even though you are entitled to some amount, the claim you have made is too high. Each party will have the opportunity to speak freely, explain, and bring out all the details of the case. The mediator's job will be to impartially mediate and negotiate the particular case with the objective of arriving at a settlement amount that is agreeable to both parties.

Should You Settle?

Mediation is an opportunity to get the defense to come to the table with authority to settle the case. However, the question always is how much they are willing to settle for, what is their maximum figure, and what are we willing to accept. If what the defense finally offers is not in alignment with your expectations, then you have the ability to walk away from the mediation, and proceed forward to the trial.

Usually, as your case comes closer to trial, there are more chances of the defense saying that they would like to mediate the case and come to a settlement. Going ahead with the mediation does not harm your case in any way, nor does it reflect poorly during trial if you have refused their settlement offer. In fact, you get to know clearly how much the defense is willing to offer before the trial. If what they are offering is too low, you can always refuse and go ahead with the trial.

You would have already discussed with your lawyer and come to a figure that you feel is reasonable. During mediation, your lawyer will aim to get something much higher than this figure, but will be willing to settle on the discussed figure. Hence, it all depends on how the mediation progresses, the point put forward by the defense, and the ultimate figure they are willing to settle on.

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