I began to think about this following my recent post on the Fairness In Nursing Home Arbitration Act and reading Donald Vanarelli’s Blog on elder law. The reality of the matter is that trials are becoming less common with both parties frequently opting to either settle their disputes amongst themselves, agree to binding arbitration or use mediation to help them resolve their dispute. Nonetheless, trials will remain the ultimate way of deciding disputes.
- Trials in Federal Court have declined by 80% from 1985 to 2003
- Of the 98,786 tort-related cases in Federal Court only 1,647 or 1.7% went to trial
- There has been a 23% decrease in State Court trials from 1992 to 2001
- A mere 0.5 to 1% of civil lawsuits filed in State Court around the country actually go to trial
My guess is that cases involving nursing home abuse and neglect are consistent with the statistics cited above. In nursing home litigation there are other factors to consider when evaluating if a case should be taken to trial including:
- The injured parties age– can he or she wait for a trial which may occur years down the road
- Health of the injured party– can they physically be present for the duration of a trail
- Family concerns- does the family want to relive a dark chapter in their lives
- Economic– Many nursing homes have ‘eroding policies.’ Eroding policies usually have a maximum pay out that includes both defense attorney fees and money paid towards settlement of the injury or death. In other words, the longer the defense lawyers get paid, the less potential recovery there may be for the injured victim.
I wholeheartedly agree with Vanarelli, that each case should be prepared as if it was going to trial–even if the reality is that it will get resolved through an alternative such as mediation. Here is Vanarelli’s list of how lawyers should prepare for mediation:
1. You greatly increase the chances of success in mediation when you make the mental transition from thinking like an advocate in pursuit of a “win” to thinking like a counselor seeking to create value for both parties.
2. Determine what basic information you need from the other party, if any. Think about what the other party will need from your client. Then, make a timely exchange of basic documents and information prior to the mediation.
3. Prepare your client for mediation. The client should understand ahead of time the general nature of the mediation process: what role the mediator plays, what role the lawyer plays and that confidential information may be disclosed because it is protected in the mediation. In addition, the client should have the benefit of the lawyer’s evaluation of the case, including case weaknesses. Most importantly, the client should understand that there is a real opportunity to resolve the case in the mediation.
4. Help the client identify his/her real interests by asking the client to tell you what he or she wants to achieve, listening to the answers and examining each goal identified by asking “Why”? “Why do you want to achieve that goal?” Find out what really motivates the client. Asking questions to uncover interests is like peeling the layers of an onion.
5. Listen closely to the other party during the mediation. When the other party states his/her position, they are giving you valuable information about what they want. Invite them to tell you more by asking: “Why do you want that?” “What is the problem?” “What are your concerns?”
6. Explore the possible resolutions to the dispute. Assess your client’s BATNA (Best Alternative to a Negotiated Agreement). Your BATNA is the reality your client will face if you reach no deal in the mediation. After analyzing your BATNA, calculate your reservation value, or the lowest offer you would be willing to accept.
7. Assess the other party’s BATNA. Think through the alternatives that the other party will face if no deal is reached. Using that information, calculate the other party’s reservation value.
8. Evaluate the ZOPA (Zone of Possible Agreement), or the range of all possible settlements which would be acceptable to both parties. The ZOPA falls between the reservation values of both parties.
9. Prepare a mediation game plan in advance. Decide whether you should make the first offer, how you will respond to offers made by the other side, and how you will use the joint sessions.
10. Use the mediator to educate your client about the strength and weaknesses of his/her case. If your client has unrealistic expectations, let the mediator deflate them. If your client is absolutely convinced of an outcome, let the mediator undercut that conviction. Help the mediator to conduct a similar educational process with your opponent. It might be a good idea to submit a summary of the facts and legal issues in the case to the mediator in advance.