Why Mediate The Nursing Home Abuse Case?
The first question that arises is "why mediate in the first place?' If you have a strong case, you’re well prepared, and you believe in your cause—why mediate?
There are many things to consider in determining whether to mediate. First consider the costs of trial versus mediation. As we know, the closer one gets to trial the higher the costs. There is a direct relationship between the amount of costs incurred and the age of the case. This is principally due to the costs of the expert discovery that occurs in the last 50 days before trial. Then, of course once the actual trial starts the costs go through the roof. Again, this is primarily the result of the costs of experts, but in addition there are your costs of exhibits, trial consultants, witness fees, juror fees, court reporter fees and others.
Consider the time saved by mediation versus trial. Just getting to trial takes 12 to 14 months. Then there is always the possibility of an appeal afterwards. A mediation can often, and is often done within months of the initial filing, after critical witnesses have been deposed and essential documents obtained.
Mediation offers creative solutions to problems, whereas trial does not. In trial, there is a winner and a loser. Mediation many times can meet the needs of both parties. Creative solutions can be crafted which are impossible with a jury. Confidentiality can be part of the settlement if that is important to the parties. Structured settlements can be set up so that client's can retain public benefits that they may be receiving. Liens can be dealt with more easily, than after a verdict has been achieved.
Mediation is a less stressful situation than a trial. The client or as is more usually the case, the family members, do not have to endure a rigorous cross examination. They do not have to spend weeks in a courtroom listening to the other side's evidence and arguments. There is less stress because, they, to a large extent, control the outcome, not 12 members of the community who will hear about their case for two to three weeks and then go home. This last item is huge. The uncertainty of what a jury will do with a case causes enormous stress on the parties.
There are no rules of evidence at mediation. Bring in whatever you want to persuade the other side. You can bring in the most inflammatory record of past abuses at the nursing home (this may or may not get in at trial, but everyone sees it at the mediation). The plaintiff's can bring in any kind of video or day in the life film, unedited, and the other side has to listen to it.
You get to meet the decision makers face to face. A good mediator will find out what interests each side may have, over and above the amount of money involved, which are stumbling blocks to settlement.
You control the process. You pick the mediator. You pick the time and the site. You choose how much to spend. You decide how much time to spend.
Client participation. This is particularly huge for the plaintiff's. At their deposition, they are told, "Don't volunteer information, just answer the question, etc." Clients need to express their feelings about the case. The mediation is the perfect place for them to do so. They can express their sorrow, the hurt, their indignation. This can be very emotionally satisfying. Again, this isn't something that can be done in a trial setting, necessarily.