Medical Malpractice Case: If mediation was unsuccessful, why must my brother meet with the mediator again ?

Asked about 1 year ago - Cleveland, OH

My brother went through an unsuccessful mediation in a medical malpractice case with a mediator concerning the death of his wife while in hospital care. The medical expert strongly supports my brother’s claim. During mediation he was told that if mediation failed (i.e. if one or both parties fail to agree i.e. sign the mediator's agreement), then mediation would not be repeated in any form, and the next step would be trial. The pretrial and trial dates are scheduled for this year. He recently was informed by his lawyer that both his lawyer and the mediator want to meet with each party separately, which completely negates what he was told during mediation What's going on here? Why is his lawyer/ law firm allowing this? What should he be cognizant of in this process?

Attorney answers (5)

  1. Christian K. Lassen II

    Pro

    Contributor Level 20

    5

    Lawyers agree

    Answered . They are trying to see if they can still get this resolved...sit tight.

  2. David Ian Schoen

    Pro

    Contributor Level 20

    4

    Lawyers agree

    Answered . Don't complain at this point. If they think there is a possibility of a reasonable resolution, that is preferable to risking a jury verdict. You do not have to settle but doesn't hurt to try again.

  3. Inga L Stevens

    Contributor Level 16

    3

    Lawyers agree

    Answered . Your brother needs to ask his lawyer this question. No one here can second-guess his lawyer.

    Attorney Inga Stevens is licensed in Maine. She provides general information on Avvo.com. No attorney-client... more
  4. Rebecca Lynne Melone

    Contributor Level 12

    3

    Lawyers agree

    Answered . If his case can be resolved without going to trial, it may be worthwhile to pursue. He should ask his lawyer if he has questions about the process.

  5. Josh P Tolin

    Contributor Level 19

    2

    Lawyers agree

    Answered . All mediators are different and handle things a little differently. I have had mediators call me up and still work toward getting the case resolved even after a formal mediation. Meeting with parties separately is necessary. Many times the mediator has to "hammer" on one party or another, and does it in private. It sounds like your mediator is doing what he can to try to bring the case to a successful conclusion. Let him do his job.

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