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Mediator and Attorney Selection

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.

Mediators can take a variety of shapes. With the rising popularity of alternative dispute resolution, many attorneys and former judges have turned to full-time employment as mediators. However, many of the most effective mediators are those attorneys who still spend most of their time in the courtroom. They know how judges and juries operate, and they can often accurately predict how a particular claim or defense would play during trial. By being able to speak with credibility on such matters, these attorneys can bring parties to common ground more quickly.

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. Yet decades of mediation and declining jury trials have had profound effects on the legal profession. Basic trial technique seminars designed for recent law school graduates are now populated by attorneys who are eight to 10 years out. Many attend these seminars because--although they may have gained experience mediating and fighting discovery battles--they still have not had real experience before a jury. 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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