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By Steven G. Mehta

Having litigated many medical malpractice cases and as a mediator of those same cases, I have come across many arguments regarding the efficacy of mediation in the medical malpractice context.  Many argue that unless all discovery has been completed, mediation is ineffective.  Others say that mediation is effective from the very beginning.  Yet others offer blame for failed mediations from a partisan perspective.  Regardless of the view of mediation in malpractice cases, it is clear that mediation has become a preferred tool for resolving these type of disputes.  Recently, A study of mediation in medical malpractice cases found that mediation is beneficial according to the participants but that a key missing ingredient, however, is the doctors themselves.

The study, co-authored by Carol Liebman, , a professor of law at Columbia Law School and director of the school’s mediation clinic was  published in the Journal of Health Politics, Policy and Law.  The study evaluated 31 cases from nonprofit hospitals in New York City.

The study revealed that 51% of the cases were settled at mediation and another 16% were settled shortly after; leaving 32% unsettled.  The study also found that defense attorneys were less likely to agree to mediation than plaintiff attorneys.  However, when attorneys participated, they were satisfied with the process.  Moreover, the parties (plaintiffs, insurance and hospital representatives) that were involved were also satisfied with the process.

The authors also found that in no cases did physicians participate in the mediation. According to Professor Liebman, that misses some opportunities to “repair the relationship between human beings.”

When you don’t have the involvement of “the person who is involved in these decisions, day in and day out, you don’t get valuable information,” Liebman says. “A lawyer’s job is to defend the case, not to reshape policy.” Mediation, she says, offers the opportunity to improve patient safety in a way litigation cannot.

This study is interesting because it supports some of the research I cited previously in my report  THE TRUE MOTIVATIONS OF PLAINTIFFS IN BRINGING MEDICAL INJURY LAWSUITS.

It is also interesting because in all but a few of my medical malpractice mediations, the doctors do not attend.  The study cites reasons such as work schedules and defense attorneys not requiring such attendance.  It is also interesting to note that the plaintiffs — to a person — are always surprised when they show up at mediation to find that the doctor is not there.  Indeed, in the book cited in my prior post listed above, the study also found that plaintiffs expected to get answers from the doctors at the mediation.

I agree that the commercial mediation process is missing an opportunity to repair relationships and to reflect answers.  It also is missing the opportunity for physicians to learn from the process; not just the medical issues, but also to try and understand why they ended up in a lawsuit in the first place.  Research has indicated that communications issues are prevalent in the filing of lawsuits against doctors.  Indeed, one study found that 85% of malpractice payouts were done by 6% of the physicians.  The reason was not the quality of the care, but the quality of the communication.  Another study found no connection between the number of lawsuits and the quality of the treatment.  According to a study done by Hickson and Associates, “Physicians who have been sued frequently are more often the objects of complaints about the interpersonal care they provide–even by their patients who do not sue.”  If the physician attended the mediation, he or she may get a better understanding in a confidential process about why she got sued in the first place and what she could have done to avoid it.

Often parties are less connected to the impact of litigation until they attend mediation.  Indeed, this concept is true for both sides.  Having them both present certainly would allow both sides to truly understand what it means to be in litigation and how to avoid it in the future.

Research Source:

Wall Street Journal, December 14, 2010.

By Steven G. Mehta

In the not too distant past, whenever anyone mentioned dispute resolution in Russia, it would have included a life sentence in Siberia.  But Russia has come a long way from the communist days both in its economy and in its ability to resolve conflicts.  Starting January, 2011, mediation will be available as a dispute resolution tool in Russia.  A new mediation law was signed into law in late July of this year.

According to the Institute for Conflict Management, “Under the Mediation Law, entities involved in a private legal relationship may agree that a likely (or de facto) dispute will best be resolved through a mediator, i.e., an independent individual acting as an intermediary. A mediation agreement must be executed in writing (e.g., as a mediation clause) and may apply to a dispute arising out of civil, labor or domestic relations. However, to qualify for mediation, any such dispute must not affect the rights and interests of any third parties that are not involved in the mediation process or collective labor disputes.”

Although the law is a great start, according to the Moscow Times, the law has significant imperfections that may prevent it from being used immediately until amendments are created.  Nevertheless, it is a true testament to the power of the mediation process that Russia has enacted such legislation and is actively seeking to apply mediation to its civil disputes.  Mediation is no longer the alternative, it is the maintstream.

By Steven G. Mehta

Recently there has been a lot of controversy over illegal and legal immigration.  Although come to think of it, the controversy is not new, nor is it unique to the United States.  Most countries have significant controversy over immigration.  In addition, there are very heated feelings about immigration; and then there are equally heated feelings about the people that oppose such immigration.  All in all immigration is an enduring topic that affects all aspects of our lives.  Many times in mediation the issue of immigration status comes up and its effect on the outcome of the case. 

I have previously written about studies that show that juries are likely to not empathize with people from other cultural backgrounds.  (See my prior post People’s Biases Towards Other’s Pain Revealed in New Study).  But I would also like to address some of the more deep seated reasons some of these biases exist.  Therefore, I have researched some literature on this topic and thought I would share it with you.

One study that was presented to the American Socialogical Association addressed the issue of immigration in the context of American values of egalitarianism and the protestant work ethic (PWE).  That study concluded that Americans have historically held ambivalent attitudes toward immigrants. While they recognize that immigration is an inextricable part of the American national identity, most Americans perceive immigration as inherently threatening and, as a result, maintain various negative stereotypes about immigrants. Modern theories of prejudice suggest that the sympathy and antipathy that Americans express toward immigrants are due to two strong, but conflicting values.

On the one hand, Americans value egalitarianism, characterized by social equality, social justice, and concern for others in need. On the other hand, Americans also value the Protestant Work Ethic (PWE), an individualistic belief in hard work, self-denial, and individual achievement. The study tested the relationship between egalitarianism, PWE, and attitudes toward immigrants. The study found that that both egalitarianism and PWE  independently predicted attitudes toward immigrants, with egalitarianism associated with positive attitudes toward immigrants and PWE associated with negative attitudes. However, PWE predicted attitudes only toward ethnic groups stereotypically perceived as violating the PWE, but it did not predict attitudes toward groups thought to uphold the PWE.  Finally, the study found that close contact between the subjects and immigrants was associated with positive attitudes toward immigrants, whereas impersonal contact was not predictive of attitudes.

Matsuo, H. and McIntyre, K. , 2005-08-12 “Ambivalent Prejudice toward Immigrants: The Role of Social Contact and Ethnic Origin” Paper presented at the annual meeting of the American Sociological Association, Marriott Hotel, Loews Philadelphia Hotel, Philadelphia, PA Online <PDF>. 2009-05-25 from

Other researchers have discussed the fact that some of the bias against immigrants is based upon inherent biases against people who we perceive to be in a different social group from our own – the so-called ‘out group bias’ – together with a similar aversion to people who are members of a social minority. Migrants usually fit both these descriptions.

Now Mark Rubin and colleagues have another, even more elemental reason for prejudice against migrants — ‘cognitive fluency’. People generally favor things that they find easy to process, as demonstrated, for example, by their preference for investing in companies with easy-to-pronounce names.  Rubin and his colleagues believe that there’s something cognitively awkward when it comes to considering migrants, and this mental difficulty biases us against them. ‘An Algerian who has moved to the United States would be more difficult to process than an Algerian who is living in Algeria,’ they wrote.

The researchers recruited hundreds of students to perform various thought experiments. The students imagined a group of people in a room and that this first group was divided arbitrarily into two smaller groups, A and B, with a minority of each group then sent to the other group. The group swappers were the ‘migrants’. The researchers balanced out the effects of out-group and minority bias by asking the participants to imagine they were themselves either in the migrating group, control group, or not involved. They next asked the students to rate the character of a typical control group member (one who stayed in his or her original group) and a typical migrant (who’d swapped groups), and then they asked the students to rate how easy they’d found it to think about members of the different groups.

Interestingly, the students rated migrating group members more negatively than control group members and this was partly because they’d found it more difficult to think about the migrants compared with the control members. A second study showed that group members who were excluded from their original group, rather than swapped to another group, were also rated negatively and described as awkward to think about.

The researchers said their finding showed prejudice against migrants can partly be explained by the cognitive awkwardness of thinking about a person who lives in one place but hails from another. 

Rubin, M., Paolini, S., & Crisp, R. (2010). A processing fluency explanation of bias against migrants. Journal of Experimental Social Psychology, 46 (1), 21-28 DOI: 10.1016/j.jesp.2009.09.006

These studies have some direct application to the mediation and litigation world.  First, the ethnic background of a person is usually taken into consideration when considering the evaluation of the value of the case – despite the fact that in modern society it shouldn’t be so.  The reality is that people do have biases; and as these studies suggest, they are deep seated for many reasons.  The makeup of the jury is often discussed extensively as it applies to the plaintiff or defendant.  People often say that they don’t think the jury will connect with an immigrant from [name the country.]

These studies start to reflect some of the issues that are underlying these ever present biases.  As noted above, many people are fighting for the protestant work ethic.  You hear of statements that the immigrants are taking all the welfare money, using the services, and forcing hospitals to close.  These complaints are directly correlated with the PWE.  This issue would be an important area to voir dire in front of a jury, especially when you have an immigrant party in a jurisdiction that has few immigrants or when less immigrants will make the jury pool.

Another consideration is to try to change the person’s focus towards egalitarianism and trying to get people to consider the immigrant as part of the greater social order or part of the in group.  In addition, it might be helpful as a litigator to try to develop facts and information that demonstrate that your particular client is trying to integrate into the greater society by learning the language, paying taxes, working hard, not using public assistance, etc.

As a mediator, this topic could be an important area of discussion.  Understanding the reasons for a particular bias is the first step in being able to overcome that bias.

By Steven G. MehtaSteve Mehta

Gov. Arnold Schwarzenegger has signed a bill by state Sen. Jenny Oropeza, D-Long Beach, that increases elder abuse penalties. When it takes effect Jan. 1, 2010, Senate Bill 18 will increase California fines from $6,000 to $10,000 for those found guilty of placing an elder or dependent adult in situations where great bodily harm or death is likely. In addition, the new law will increase fines from $2,000 to $5,000 for those found guilty of placing an elder or dependent adult in dangerous situations not likely to cause death or serious bodily injury. SB 18 is aimed at protecting those ages 65 and older. It does not change sentencing guidelines for elder abusers who are imprisoned for their actions. “California’s senior citizens and their families will rest easier knowing that my new law will help protect them from abuse,” Oropeza said in a statement. “Elder abuse for far too long has been a hidden, pervasive and deadly crime where out of 5 million recent cases, a shocking 84 percent went unreported.” SB 18 was endorsed by the California District Attorneys Association, the California State Sheriffs Association, the California Commission on Aging and the Alzheimer’s Association.

Source:  Press Telegram

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