Mediation is now one of the most common ways of resolving medical malpractice claims, with some states such as Florida making it mandatory within 120 days after medical negligence cases are filed.
But what are the keys to a successful negotiation and why do some mediations end in failure?
Those are among the many issues that will be explored during a panel at the 2025 Crittenden Medical Liability Conference in Miami, which takes place at the Mandarin Oriental from April 7-9.
Orlando-based mediator and arbitrator Benjamin Newman moderates the April 8 panel entitled, “Mediation in Medical Malpractice Cases: What’s Really Happening in the Plaintiff’s Room?”
Newman, whose practice focuses on medical malpractice and long-term care cases, served as a defense attorney in the area for over 25 years prior to going into ADR.
The panel, which runs from 8:30 a.m. to 9:30 a.m., also includes Dominique Bartholet, a bilingual Spanish-speaking attorney and mediator at Bartholet Mediation in Houston and plaintiff personal injury and medical malpractice attorney Jay Cohen, a senior partner at the South Florida law firm Cohen & Blostein.
What are the main points that will be addressed during this panel?
Newman: Our discussion will address some of the questions defense counsel and their clients have about what really goes on in the plaintiff’s room during mediation, including the interplay between plaintiff’s counsel and their clients, who is/are the real decisionmakers during negotiations, and how expectations change during the negotiation process. Additionally, we’ll address the challenges that settlement mediators face in the plaintiff’s room and how we work to overcome those challenges in order to increase the chances of a settlement.
What are the important dynamics that you observe as a mediator in the plaintiff’s room?
Newman: It’s important for us to ascertain early in the process who is “calling the shots” in regard to negotiations and to determine whether there is alignment or a divergence of expectations between plaintiff’s counsel and their clients. In addition, monitoring the emotional state of the participants and efforts to lower the emotional temperature are ongoing components of a mediator’s role in the plaintiff’s room.
What are some of the factors that determine whether the mediation will be successful?
Newman: We have found that successful settlements occur when participants are able to move beyond the emotional and personal aspects of the case and focus on the pragmatic realities of certainty of outcome with settlement versus the uncertainty and risk of trial. Obviously, every case is different and the temperament of the participants varies widely, so patience and perseverance are key in moving settlement discussions toward mutual agreement among the parties.
