Schenk: This is episode 74 of the Nursing Home Abuse Podcast: How does mediation work in Georgia nursing home cases?
The Nursing Home Abuse Podcast is dedicated to providing news and information to families whose loved ones have been injured in a nursing home. Here are your hosts, Georgia attorneys Rob Schenk and Will Smith.
Schenk: Welcome back everybody. My name is Rob Schenk, and again absent, conspicuously absent this week, is my co-host, Will Smith, who is still enjoying his European vacation, a la the Griswolds, in the south of France, so everybody wish him well, and I think he will be back next week. Who knows? He put his little backpack on and took off for Europe, which he’s known to do sometimes.
At any rate, we have an excellent episode for you today. In this episode, we’re going to be talking about – when I say “we,” I mean me – I’m going to be talking about what mediation is and when and how and where mediation takes place in Georgia nursing home abuse and neglect cases.
So from a general standpoint, whenever a client comes in, client being usually a family member of an individual in a nursing home who’s been abused or neglected, there are a couple of options depending on the facts of the case. What we as attorneys can do is either investigate, get all the facts together, and make what’s called a “demand,” which we’ve talked about on other episodes. We make a demand, send it to the nursing home’s insurance provider and attempt to settle it that way in a negotiated settlement, or we take all the information we got after investigating all the facts and file a lawsuit and take the case to trial.
Now just because we have gone either one of those routes does not forestall the ability for the parties involved to partake in alternative dispute resolution. Alternate dispute resolution is a method of resolving a claim that does not involve filing a lawsuit.
The most common form of ADR, alternative dispute resolution, is mediation. And mediation is basically where both parties come to the table and air their beef, state their arguments, their allegations and their view of the facts, and then a neutral party or parties, depending on what type of mediation is going on, will attempt to bring the two parties together so they leave with the claim resolved.
So as I said, the parties can agree to mediate no matter when or where or what is going on. So in the case of when our office sends a demand, sometimes depending on the law firm involved or the nursing home involved, we will say, “Let’s go ahead and mediate right off the bat,” and if they agree, then we go do that.
If we file a lawsuit, generally, most state courts and a lot of federal judges require mediation as a condition precedent of being put on the trial calendar. In other words, the judge says, “You guys need to work this out in mediation.” So it’s very common to be required by the judiciary to mediate or work out and resolve these claims outside of a jury trial.
But even if the judge does not make mediation mandatory, the parties at any time are encouraged to mediate the claims because you’ve got to think about it, there are thousands of lawsuits filed across the state, across the country, and if the judges can make, or the parties can get a case off the docket, the judge loves that. So the judge will always encourage the parties mediate these claims.
So again, the mediation can occur at the agreement of the parties on their own or it can be obligatory based on the judge in the court in which the lawsuit is filed.
So that’s when a mediation can occur. So how does a mediation occur? So again, everything is generally going to be by agreement, a good faith effort to get the claim taken care of. So generally, when you’re dealing with the parties agreeing on their own to mediate, then generally the nursing home or the insurance provider for the nursing home will have a couple of neutral parties that they would like to be the mediator and our office or the resident’s attorney will probably have two or three choices that they like, and that’s probably going to be one of the first things to be hammered out is who’s actually going to be the mediator. In our experience, we have the people that we like. We understand the people that they like and we scratch people off the list, we go back and forth and we finally will settle on somebody.
And then by and large there are – generally the mediators used by people, they are going to be part of a mediation organization. In Goergia, there are ADR groups such as JAMS or BAY or Miles Mediation, companies that have contractors that are usually attorneys or judges that act as mediators, so you would just call up the ADR company and say, “Hey, we are looking at – we’ve agreed upon XYZ person. Can you open up some dates for us?” Yada-yada-yada. Or sometimes the mediator owns his or her own company and does it on the side and you contact them directly. So that’s what our office is or what the other person’s office does is we call and we decide on the mediator and if the mediator is part of the organization, we go there.
So I guess long story short is the mediation will generally, generally take place most often at the offices of the mediator, and again, like I said, if the mediator is part of a large organization, it’s probably going to be in that organization’s offices.
So you’ll be taken to – usually the mediation begins where your attorney or the resident’s attorney and the resident, or if not the resident, the loved one of the resident, generally most often it’s the loved one of the resident, will be on one side of the table, and on the other side of the table, you’ll generally have the attorney for the nursing, and depending on how serious the nursing home is taking the case, some representative of the nursing home, and then a representative for the insurance company that is covering or has the policy that’s covering the claim. So you usually have two or three people on the other side, the attorney, administrator, director of some sort, owner of the facility sitting next to the adjustor.
Then you have the mediator in the middle, at the head of the table usually, and what will happen is the mediator will introduce, have the parties introduce each other. The mediator will go lay the ground rules, and some of the ground rules will be, number one, mediation is private and confidential. So generally what is said in the mediation is if the claim cannot be resolved, then what’s said at the mediation is not going to be used at trial. That’s usually the number one ground rule.
Number two is that the mediation, once the parties have agreed and it’s on paper, it can be final, but up and until that point, both parties have the right to get up and leave if they so desire, if they feel that the participants on the other side are not participating, so to speak, in a good faith effort. So that’s one of the ground rules. If you come to an agreement with the nursing home and that gets reflected on that paper and everybody signs it, that mediation resolution is now binding. However, up until that point, you can bounce. You can get out of there if you want to.
Number three is usually kind of an offshoot of number two in that the mediator prefers it when everybody is there in good faith. Sometimes parties arrive with expectations that are not reasonable. So on the resident side, maybe they want a billion dollars, which can be unreasonable, depending on the case, depending on most cases. On the other side, maybe they want to throw a nominal amount of money on the table and say this is fair, and when they’re really just stalling and they want to see the people face-to-face. So mediation generally works if both parties are there to get it taken care of.
Now after that, generally there are going to be prepared remarks by both attorneys. Some attorneys will give what amounts to be an opening statement, so there will be a PowerPoint presentation, and they’ll discuss what, if this case went forward to trial, what would be the facts that would be presented into evidence at trial. So they would likely, depending on how far along the case is, they could have deposition testimony, video testimony they could show or medical records or basically show that they’re not messing around or present some things that the other side is not aware of.
But as a side note from a logistical standpoint, we generally don’t go into a mediation without having provided the other side with everything, because in our experience, if you’re presenting evidence for the first time to an insurance adjustor, you’re generally not going to get the best offer because they need time to go back and recalculate that into their numbers. So generally, we like to provide everything to the other side so there are no surprises, so everybody has their orbit of what the case value is that is based on all the evidence that is available. They are generally not a secret in mediation unless there’s some extenuating circumstance that would call for that. I’m not saying there’s never one, but generally, by and large, if you want to get it done, you want to provide them with all the ammunition that they need in order to get the best offer on the table that day.
So the opening statements are done, and generally the opening statement is just a way of saying, “Listen, at trial, the claims and the defenses, the nursing home’s defenses and the plaintiff’s claims, are going to be placed into the hands of 12 individuals to decide. The merits will be decided by those 12 individual members of the community. That is the best system in the world. We have the best civil justice system in the world. However, sometimes it is not as reliable as we would hope it to be. In other words, sometimes a case with particular facts could go one way. Sometimes it can go another way. So it’s not consistent, often not consistent.” And understanding that, I’m not saying that you purposely take losing cases to trial, sometimes you just never know. It’s never a guarantee.
So understanding that, the opening statement is basically both sides telling each other, “Listen, there’s never going to be a time where both of us have the power to decide, nobody else, the person sitting across the table and the person sitting on this side of the table have 100 percent of the power to decide what this case is worth and whether or not we’re willing to walk away with a settlement, because if it’s not accomplished and we get up and walk away without a resolution, then it goes into the hands of those 12 people.” Now again, it’s the best system in the world, but it’s not a guarantee. There are a lot of variables we don’t know, so today in the mediation, this is how we’re going to – we are in command of how it gets resolved.
So we say we have a certain value. You have a certain value. And it’s the job of the mediator to see if we cannot get both sides into – if you think of it like a Venn diagram, the two circles, get those two circles to intersect and figure out if we can leave today with that X where the two circles have met, somewhere in that area, and that’s the point.
So continuing with that Venn diagram with those two circles, if those two circles are so far apart, the mediator can’t do that. The mediator’s job is to get those two circles to overlap even in the slightest to get the job done.
So after opening statements, after everybody – let me back up. So sometimes in opening statements, this is a time, particularly if you think that there’s a good chance to get the case done, this is an opportunity for the client, for the loved one of the resident, to speak their peace. There is an individual sitting across that table, a human person, who is potentially liable, responsible for the injuries to their loved one sitting across from them, and they have to listen. So generally, depending on the client, this is not necessary – it’s only for the clients who want to do this, but they want to speak their peace, they want to say, “I think that you did this to my loved one, to my grandparent, to my parent, to my spouse, and I don’t think it’s right,” and it can be emotional but it can also be very cathartic to get that off of your chest, to be able to look that person who is ultimately responsible for your loved one and tell them what you think about them.
I’m not saying that you punch people in the face or it gets violent or aggressive, but generally in my experience, this is an opportunity for resolution from a psychological standpoint that they might not otherwise get at trial, because at trial, the client is probably going to be looking at that jury to convince the jury. Here, you’re literally telling the person. You’re two feet away. You’ll never get that opportunity again to speak your mind to them, and that’s another component. Sometimes clients want to do that. Sometimes they don’t want to do that, but that’s another advantage to the mediation process.
So after the opening statements, after the mediator gives the initial ground rules, talks about where the bathrooms, we’ll order lunch at such and such a time, then we do what’s called caucus, which is where the parties will retreat to different rooms, different conference rooms. So the attorney for the resident and the resident or the loved one of the resident go in one room and the nursing home representative, the attorney for the nursing home and the insurance adjustor go in another room. And what happens at that point is that the mediator will go room to room talking to each party.
So for example, generally what happens is the mediator will say something along the lines of, “Where does the claim sit right now?” So if one side has made a demand or an offer to settle and we’re waiting for a response, then the mediator will begin by going into the room of the person that needs to provide a response to the demand or to the offer.
So for example, if we, representing the resident, have made a demand for X dollars and the nursing home has not responded, then the mediator will begin in the room of the nursing home. In another instance, if we’ve made a demand for X amount of dollars and the nursing home has responded with Y dollars and now we’re gone to mediation, the mediator will start with us because the ball will be in our court to respond to Y offer.
So what happens when the mediator begins in that room with the individual generally that needs to respond to the offer or demand, they’ll talk about the case, and what they talk about, what the mediator talks to the opposing counsel or whatever counsel, to the people in that room, is going to be private unless they tell the mediator to tell the other side. So they’re going to be talking confidentially to each other about the strengths, weaknesses of the case, generally what they value the case, but a lot of times they keep that information from the mediator, what their top offer will be, which again makes the job of the mediator harder, but the counsel there will talk about it and then they’ll come up, generally, they’ll come up with some type of offer to go back, a response essentially. The mediator helps facilitate an opening response.
And so at that point, the mediator will come over to the other side, to their room, and they’ll do the same thing. “Here is their response to the latest offer.” And at that point, the other side will do the same thing. They’ll go, “Okay, well we don’t like that. Here are the facts that we’re stressing in a counter to what facts they’re stressing and why we think their facts are weak and our facts are strong,” and then they’ll give the mediator another number, and the mediator goes back and forth, room to room, talking about strengths and weaknesses and responding to the strengths and weaknesses with each party individually apart from one another confidentially.
And so what this does is usually it gets you – the purpose of the mediator going room to room is to begin the Venn diagram, the two circles, a little bit closer to one another, a little bit closer to one another, a little bit closer to one another, because that mediator, to do his job, he’s got to get those circles to overlap at some point.
And there are methods the mediator can use – sometimes the mediator will say, “Let’s do a bracket,” so for example, get both parties to agree we can settle, we can leave today for a value between $10 and $50, and then so that leaves out anything below $20 and everything above $50, and the mediator will start working the group within those numbers.
Sometimes the mediator can say, “You give me your lowest offer. You give me your highest offer. They’ll be silent. And if they intersect, we’re done” – things like that the mediator can do.
But often, the advantage of a mediator in many instances is that the mediator, hopefully, has experience in the particular practice area, so generally we will only select mediators and generally we will only have mediators selected that have experience litigating nursing home abuse cases whether on the defense side or the plaintiff side. Hopefully you get somebody who’s done both because they have the perspective of both sides.
So the advantage of the mediator in many instances is being able to talk sense into the parties at the table, not necessarily the attorneys, but literally the insurance adjustor or the nursing home representative to say, “Listen, your value on this and your perception on this case is completely out of whack based just on my experience. You need to consider XYZ.”
So the advantage of the mediator is when they’re caucusing, when they’re by themselves with the other party or with your party, they can speak sense into them and walk them off of a ledge, where you, well not you, but you as the resident or the loved one of the resident along with your attorney generally don’t have that type of objective leverage over the other side. They’re going to say, “Well you’re just an advocate. Why are we listening to you?” But when the mediator is saying, “Listen, I don’t have skin in this game. I’ve evaluated this case and I think your offers are not on par with what would happen in a court of law,” that’s a good thing. That’s a good thing.
And sometimes that happens with our own clients. The mediator will say, “Hey listen, we can all agree that what happened to your loved one is terrible. However, these things work out in a certain way in trial and perhaps it’s better if we walk away with XYZ.”
So aside from the fact that mediation is going to be the only opportunity you have to control your own destiny, the mediation also functions as a good check when you have an insurance adjustor and a nursing home that is being fairly unreasonable. So that’s one of the advantages of mediation is that generally it’s going to be successful.
Like I said, you’ll hear stories about people walking in, after five minutes, storming out. That happens. That absolutely happens. It happens when the other side does not have good faith expectations to get it done. They’re just there going through the motions. It happens more often when it’s court ordered as opposed to when the parties agree, because if the parties agree to mediate on their own, then generally they’re going to approach in a good faith effort, but anyways, more likely than not, the mediation is going to be successful.
So we often say another advantage to the mediation, aside from that you control the destiny, is that lawsuits are expensive. Trials are expensive and taking a case from start to finish with a verdict can take years and hundreds and thousands of dollars, and that comes out of the recovery. So what a mediation does is takes all that money out of the equation. So theoretically, you can put that into your calculations, the time and money that is saved from getting it done early on. It’s kind of like a bird in the hand is worth two in the bush.
Okay, so finally when the two parties, the two circles, the Venn diagram, the two circles are overlapping, generally the mediator begins to speed the process up. The mediator will say, “Hey, I think we’re close,” and take various steps, as I mentioned before, to close that gap and get it done.
So what will happen is if both sides agree to whatever the value is, then the mediator will call both parties back in. They’ll shake hands. They’ll sign generally a preliminary settlement agreement that is a memorialization of the key terms. So the settlement amount may be if it’s in installment payments, when those installments will be due or when those payments will be due, if they’ve agreed to confidentiality or non-disclosure, those types of things, whatever the parties agree is material, which is often the money and the release. That gets signed at the table and then the attorneys, everybody retreats back to their offices and the rest of the settlement agreement will generally be hammered out in the days following.
But that’s generally what mediation is. That’s logically how it works, some of the advantages to it and why sometimes it’s preferential to taking a case all the way to verdict. And I think that is going to conclude this episode.
I promise you that next week Will will be back from the south of France eating macaroons, I’m pretty sure, because it’s kind of getting lonely. I’ve got an empty headset over here. But at any rate, that’s going to conclude this episode of the Nursing Home Abuse Podcast. You can watch this podcast either on our YouTube channel or at our website, which is NursingHomeAbusePodcast.com, or you can check us out, Spotify, Stitcher, iTunes, Podcast Puppy, wherever you get your podcast from. And with that, we will see you next time.
Thanks for tuning into the Nursing Home Abuse Podcast. Nothing said on this podcast either by the hosts or the guests should be construed as legal advice, nor is intended to create an attorney-client relation between the host or their guest and the listener. New episodes are available every Monday on Spotify, iTunes, Stitcher or your favorite podcast app, as well as on YouTube and our website, NursingHomeAbusePodcast.com. See you next time.