GOVERNMENT & LEGAL AFFAIRS

There is no single process that can be followed in mediation of a product liability dispute to ensure success on behalf of a medical device manufacturer. However, there are certain strategies that, if followed, can maximize the likelihood of a favorable outcome. They are as follows.

Choose Carefully. Medical device manufacturers must choose their company representatives carefully. The representative should know the company, know the product, and work well with counsel.

Educate the Mediator. Manufacturers should send meaningful information to the mediator in advance. The better educated the mediator is about a company's defenses, the better equipped the person could be to beat down a plaintiff's demand.

Be Flexible. Manufacturers should not go into mediation with a fixed bottom line. Inevitably, companies will be surprised at some point in the process.

Know the Case. Knowing the facts better than the plaintiff gives a manufacturer a distinct advantage. Not knowing the case sends the message that the company does not care.

Consider Court. Manufacturers must demonstrate their ability and willingness to try the case. A company's principal leverage is the threat that it will try the case and win. Such a threat must be made credible.

Listen. Plaintiffs send underlying messages in the amounts they demand and the words they choose. Careful listening enables manufacturers to reach an agreement faster and on more favorable terms.

Let the Plaintiff Vent. Often plaintiffs just want to tell the manufacturer how they were hurt and why they are angry. Companies should not rush that process. After taking time to get emotional baggage off the table in a productive way, negotiations will proceed more smoothly.

Sympathize. The plaintiff's objectives may be emotional as well as financial. A little sympathy--even if a manufacturer believes the plaintiff to be lying--goes a long way toward settlement.

Apologize. Even if a company and its devices are not at fault, an apology can go a long way. A manufacturer can break down barriers by letting the plaintiff know at the outset how sorry the company is for whatever the plaintiff has endured. Such an apology is not an admission of fault.

Be Open. Creative solutions to a dispute are often available. Sometimes a donation to a charity, a letter of apology, an offer to pay mediation expenses, or a meeting with a top executive will end a dispute.

Use the Mediator. Manufacturers should not be afraid to give the mediator the company's bottom line and ask them how best to bring about an acceptable settlement.

Document the Settlement. Companies shouldn't leave the mediation room without the agreed-upon deal in writing.

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