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David Gordon, shareholder in the firm's Litigation section, discusses how mediation can resolve disputes more quickly and at less cost than litigation, especially when considering the emotional toll of healthcare situations, decisions and litigation.

The emotional issues in healthcare are greater than those in most other types of litigation, and that can make mediation the right strategy in many cases, says David L. Gordon, JD, shareholder with the law firm of Buchanan Ingersoll & Rooney in Princeton, NJ, and co-chair of the firm’s Litigation Section and the Healthcare Litigation practice group. Collectively, they mediate more than 30 cases a year.

"There are almost always significant medical conditions at issue with a question of whether the care caused or contributed to those issues. It is often hard for a family to understand that these issues may not be the result of negligence but may stem from their loved one’s underlying medical conditions," Gordon says. "Moreover, the family sometimes is in denial about what happened to their loved one or may have regrets about decisions they made regarding their care."

The damages permitted in lawsuits differ per state, but Gordon notes that families also struggle to understand what damages they are entitled to recover, the cost of litigation, the emotional toll of litigation, the length of litigation and the possibility of appeals, and the fact that they may lose and recover no damages.

Mediations give the families an opportunity to vent, sometimes cry, and hear from an experienced, retired judge about the risks, the damages, the costs, and the benefits of settlement that can give them closure, Gordon says. That message is much better sent from a neutral mediator than their own attorney who is a paid advocate, he says.

Not all cases settle at mediation, but most settle at some point, and the mediation plays a significant role in increasing those chances, he says.

"If the family or plaintiff is not respected at mediation, mediations can have a negative effect on the ultimate result — but most defendants have the experience and tact to prevent that from happening," Gordon says. "Mediations are a significant tool in the world of professional liability litigation."

Read the full article, "Mediation Can Resolve Disputes Faster, at Less Cost Than Litigation," in Healthcare Risk Management.