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<xTITLE>Why Mediation Is the Holy Grail for Health Care Disputes</xTITLE>

Why Mediation Is the Holy Grail for Health Care Disputes

by David Zacks
November 2020

JAMS ADR Blog by Chris Poole

David Zacks

After trying cases for most of my career and having served as a full-time neutral for the past five years, I’m convinced mediation is the best option for resolving cases while keeping your clients’ interests in mind, particularly for health care disputes.

Think for a moment about how many issues could be avoided when facing a trial or arbitration if counsel focused on reaching a fair resolution for their clients. In health care cases, whether the dispute is between a health care system and an insurance company or a hospital and a physician, the patients are the ones who are most affected. How can solutions be tailored to allow for optimal patient care? The ongoing COVID-19 pandemic has added an extra layer of uncertainty and concern. What is the best way to handle these types of cases?

Mediation allows for parties to creatively craft resolutions that might not otherwise be available through the court system.  Mediation has allowed for a vast majority of cases to reach resolution even when it is court-ordered. Mediation works.

Here are some factors to consider regarding mediation:

  1. Mediation can eliminate the stress and emotional toll associated with going to trial or participating in an arbitration. I know this is true for medical malpractice cases. Both the plaintiffs and defendants in those cases want nothing more than to put the anxiety associated with their case behind them. Mediation gives them a venue to express their emotions, to be heard by the mediator and often times the other party and to work towards resolution.
  2. Mediation can result in finality. It usually produces a fair resolution, at which point the case can be dismissed in court. A settlement allows parties to close this chapter and move on. In health care cases, this means being able to return their focus and energy on patients and providing much needed medical care.
  3. Mediation lets parties control their own destiny rather than leaving it in the hands of a jury, judge or arbitrator(s). Unfortunately, not much is certain in the world right now. We don’t know how long we will be dealing with the effects of the pandemic or how it will ultimately change the way our health care systems work. Mediation allows parties to participate in the process of resolution and take control of their case.
  4. Mediation is confidential. Particularly important in health care disputes, confidentiality allows all parties involved to feel confident that what goes on in mediation stays between the parties and the mediator. Whether the matter involves the personal (and HIPAA protected) information of a patient, a highly sensitive business deal between hospitals or the employment record of a physician, confidentiality is of the utmost importance.
  5. Mediation is faster and less expensive than litigation or arbitration, saving considerable time and money. With the fiscal strain that COVID-19 has put on every aspect of the health care system, it’s more important now, more than ever to have a monetarily efficient way to resolve disputes.
  6. Mediation gets results with an aggregate settlement rate of 89%; an effective ADR tool to bring closure to matters.[1]

So there you have it. I am a neutral who unabashedly advocates for and promotes mediation, particularly in the context of health care disputes.

 

[1] Centre for Effective Dispute Resolution, The Eighth Mediation Audit, 2018.

Biography


David M. Zacks, Esq., is a JAMS neutral based in Atlanta specializing in business/commercial, employment, health care, insurance and other matters.



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