8.3 Mediation and Arbitration

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

8.3 MEDIATION AND ARBITRATION

8.301 Mediation. Mediation should be explored by malpractice litigants once the parties have concluded that settlement is an appropriate way to resolve the case. It is an excellent vehicle to determine the amount of the settlement and is becoming an increasingly popular tool.

Mediation can be done at any time during the litigation process and can take many forms. It can be simple, with a mediator, the parties, and the attorneys in a conference room, or it can be more formal, with written submissions and live witnesses. Mediation requires nothing more than a competent mediator and the parties' willingness to make a good faith effort to settle the case. Once both sides feel that they have sufficient information to determine whether there is a dollar amount that will resolve the litigation, they should consider mediating the case.

The services of a mediator can be obtained by contacting one of the alternative dispute resolution services available throughout the state. It is important for the parties to agree on the choice of a mediator so that all parties have confidence in the mediator and the mediation process. If there are significant legal issues in the case, it may be important for the mediator to have a litigation background and be familiar with medical malpractice legal and evidentiary issues.

Once the mediator is selected, the parties and the mediator will decide how the mediation will be conducted. Some mediators prefer to have information provided to them before the mediation so that they can read and consider issues. Other mediators prefer to have no information beforehand other than the names of the parties to determine whether there are any conflicts of interest. The mediator then obtains all of his or her information during the mediation process. The parties will need to decide how they will present testimony to the mediator and to the other side. One option is for counsel to summarize during an opening statement the evidence and testimony expected to be presented at trial by their side. Another option is to use depositions or reports from experts or to present live testimony from parties, witnesses, and experts. Since one of the purposes of mediation is to save costs, it is generally preferable to present summaries of expected testimony.

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A mediation will typically start with the parties, their attorneys, and the mediator in one conference room. The mediator explains the mediation process and assures...