Mediation is a popular form of alternative dispute resolution (ADR). Most Texas medical malpractice cases are mediated before going to trial.
Mediators aren’t judges (even though some of them are former or retired judges). Mediators can’t force defendants to offer more money than they want to, or force plaintiffs to accept a settlement offer—even when the mediator thinks it’s a good one.
The role of the mediator is to facilitate settlement negotiations between plaintiffs and defendants. The mediator’s goal is to get the maximum amount of money on the table in the form of an offer from the defendant for the plaintiff to consider.
In virtually every case, the defendant’s final offer will be less than the full extent of damages the plaintiff. In other words, defendants rarely, if ever, pay the full potential value of the case if it were tried to a jury verdict. This is based on two factors.
First, there’s always a chance in any case that a jury may return a defense verdict, which would mean that the defendant would have to pay nothing. Second, defendants realize the time value of money and how many people are uncomfortable at tolerating the risk of trial when there’s a firm offer on the table.
Some defendants, as well as their attorneys and medical malpractice insurance adjusters, take unreasonable approaches at mediation and make lowball offers to settle. In many instances this is just a technique that they use in every mediation. That’s why we counsel our clients not to pay attention to the first offer because the last one is the only one that matters.
In other instances, the defense side persists with lowball offers to the end. Sometimes this strategy is related to their evaluation of the case, but other times it’s because of internal situations that have nothing to do with the plaintiff.
When we’re confronted with lowball final settlement offer, we counsel our clients to walk away. We never recommend that our clients accept an unreasonably low settlement offer in a medical malpractice case. After we share our analysis and make our recommendation on how to proceed, the final decision rests with the client.
By participating in mediation, plaintiffs don’t waive their right to a jury trial. When we mediate a case that doesn’t settle, we get right back to work on the case to finalize preparation for trial. When a plaintiff exercises walk away power from a mediation settlement offer, defendants sometimes will all for more money before trial. Sometimes they don’t in the case gets tried.
When selecting a lawyer for a Texas medical malpractice case, it’s important to find someone with top ratings and experience in this complex area of the law, who’s also not afraid to take your case to trial if necessary.
