The Farmer and the Cowman could be Friends

An Oregon measure just approved by the state senate judiciary committee there encourages malpractice mediation before lawsuits are filed. Both doctors and trial lawyers are actually behind a bill creating a new mediation process for patients injured by medical mistakes. Governor John Kitzhaber, himself a physician, called the agreement “the holy grail of medical and legal politics," something he reportedly never thought he’d live to see. The legislation is touted as a potential benefit to the practice of medicine and thousands of patients. The effort is aimed at reducing medical liability claims, yet puts no restriction on the amount of money a jury can award for medical errors. Critics say it will do nothing for ever-increasing premiums for medical liability insurance. Under the process, injured patients confidentially discuss the error and a possible settlement with the tortfeasor through the assistance of a professional mediator. Participation would be voluntary and the discussions would be inadmissible in court if a lawsuit were eventually filed. Proponents hope this would encourage frank discussion among the parties that could stave off lawsuits. Sponsors claim doctors would have a better opportunity to learn from mistakes and might reduce their ordering of medically unnecessary tests to protect themselves from lawsuits. Oregon lawmakers set a cap of $500,000 on non-economic damages in liability lawsuits in 1987 that the Oregon Supreme Court overturned in 1999. Voters rejected two statewide ballot measures to reimpose caps in 2000 and 2004. The Doctors Company, which insures forty percent of physicians in Oregon, fears higher administrative costs for insurance companies along with higher premiums. Of course, Florida has maintained a mandatory pre-suit screening process in medical malpractice for decades. However, mediation is not a stated option, though underutilized voluntary non-binding arbitration is contemplated following investigation. It is good to see Alternative Dispute Resolution present in a modern debate over medical liability reform, which is always very difficult in producing political consensus. The hope is fewer cases will be litigated and legitimate injuries will be fairly compensated, so that Oregon's health care system as a whole can run more efficiently. The endorsement of the Oregon Medical Association and the Oregon Trial Lawyers Association is certainly an indication that perhaps the Farmer and the Cowman are becoming friends; at least out West. See stories here-- http://bit.ly/VlxO9u and http://stjr.nl/UoQnds

Assessment Workgroup for the Managed Mediation Program for Residential Mortgage Foreclosure Cases Recommends Changes

Though Florida’s mandatory mortgage mediation programs have likely fared better in achieving work-outs than statistics indicate, an Assessment Workgroup for the Managed Mediation Program for Residential Mortgage Foreclosure Cases warns that a new wave of foreclosures will languish if additional resources are not provided to the courts. The group, created by Supreme Court Chief Justice studied results indicating that only 3.6 percent of eligible cases were actually settled in foreclosure mediation since December 2009 for homesteaded properties. Therefore, it is probable under the group's recommendations, that the mandate for a statewide managed mediation program will end, while allowing for circuits to opt in, under a potentially revised administrative order, to resolving cases in their own local programs. However, the group did say it was probably too early to conclude the mortgage mediation program was a failure and noted many difficulties were because lenders were reluctant to participate. “The public comments received provided evidence that servicers on a broad scale resisted providing representatives at mediation with full authority to settle and refused to consider more than a narrow range of settlement options, most of which were of little value to borrowers,” the report said. “Servicers had economic incentives not to settle and to keep foreclosure cases in limbo to avoid the expenses that accompany home ownership.” Apparently, a substantial number of cases apparently settled after an impasse was declared at mediation, probably because of the document exchange and counseling that occurred at mediation. This was evident in the Orange County program-- at least anecdotally-- and some permanent modifications were made after temporary agreements were reached at mediation, which is no longer an option, now that "no agreement" style orders are required. Pre-suit resolutions are also hard to develop data on to show success in lender - homeowner negotiations. Florida Bar News story: http://bit.ly/rUTgII Read full report here: http://www.floridasupremecourt.org/pub_info/documents/Foreclosure/10-21-2011_Workgroup_Final_Report.pdf

Business Litigation "Pre-nups" and E-discovery Mediations

Mediators assist clients in pre-suit negotiations involving complex litigation all the time, but the focus at that juncture in a case is usually on damages and avoiding expenses that will be encountered if actual court litigation ensues. Attorneys who understand the importance of limiting downstream litigation costs should consider alternatives to what I call Mutually Assured Destruction, or pushing the nuclear E-Discovery button in a litigation where perhaps the amount in controversy does not justify the great expense of full-blown data discovery of this nature. Litigation "pre-nups" can include an E-discovery component, confidentially resolving issues of scope with binding agreements-- as well as mediation on the substantive issues-- before resorting to actual litigation. Legal authors in this field, Alison O'Neal Skinner and Mary Mack, have recently advocated taking advantage of these processes early in a case and believe a confidential exchange of proposals on how to create a workable E-discovery plan increases the chances of reaching mutual solutions. (http://bit.ly/e1g0tc) So next time you are thinking about/encountering the scorched earth discovery plan, try this approach first!