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Monday
Aug182014

When is Mediation not Mediation?

Last week, the Milwaukee Journal Sentinel ran an article about the Wisconsin Medical Malpractice Mediation Panels (MMP), with the headline “Medical Mediation Rarely Provides Closure”. The only problem with the article and the headline is that the MMP is not really about mediation.  The Wisconsin Legislature and the Director of State Courts both agree that “[a]lthough referred to in the legislation as ‘mediation,’ the work of the panels is more accurately described as ‘early neutral evaluation.’”  Early neutral evaluation (ENE) is a valid form of alternative dispute resolution, but it is distinct from mediation.  ENE involves an individual or panel giving a valuation of the case early in the process, in order to facilitate resolution.  This is what should take place in the MMP process but it is not what takes place in real Mediation.

True Mediation is one of the most positive developments in modern dispute resolution.  In the truest form of Mediation, the mediator does not decide or force a resolution; rather, using a structured process, a mediator endeavors to work with the parties to develop a resolution.  Mediators have an ethical obligation to provide a process for the informed and self-determined choices of participants.  Self-determination, confidentiality, and creative problem-solving can render outcomes superior to many other dispute resolution processes, including litigation.     

I do not know how effective the MMP is in resolving medical malpractice complaints.  At least one attorney familiar with the process has stated she is unaware of any cases in which the panels were instrumental in resolving the case.  On the other hand, repeated studies have shown that mediation is an extremely successful form of dispute resolution, resulting in a nationwide settlement rate of more than 75%.  Regardless of settlement, over 80% of participants are glad they took part in the process.  True Mediation is highly effective in resolving disputes across a broad spectrum of personal, legal and business conflicts.

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