Mediator and Attorney Selection 4289

GOVERNMENT & LEGAL AFFAIRS

The critical point during mediation often arrives when a mediator delivers a reality check to the plaintiff or defendant that causes the party to change its settlement posture. Therefore, a mediator needs to have the ability to look a plaintiff in the eye and explain why their risk of future surgery may not be worth seven figures. Similarly, a mediator may have to convince a medical device executive why the jury could not care less about FDA's approval of the company's product. Therefore, selection of the right mediator is key.

Parties often spend significant time and resources trying to find a mediator with a perceived plaintiff or defense bias. However, whether a mediator has appeared more on the plaintiff or defense side makes little difference. The mediator does not decide the case. The most a mediator can and should do is ask probing questions and keep negotiations moving in a forward direction, causing both sides to periodically reevaluate and adjust their positions. Some plaintiffs' lawyers are effective mediators and have produced excellent results for device makers because they have been in the trenches long enough to know where the leverage points lie for both sides.

In addition, manufacturers must carefully select the attorney who will represent them during mediation. Defending today's complex claims demands counsel who are both skilled at mediation and have the experience to take the case to trial if necessary. Thus, when choosing an attorney, manufacturers should not hesitate to inquire about the number of cases the attorney has successfully mediated, the number of cases the attorney has tried to a verdict, and the percentage of those that were in the medical device field.

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