These are some of the questions we often answer. We know that each engagement is unique, so please Contact Us  to ask any questions.

Please choose the type of client for which the question should be of most interest.

Q: WHEN DOES HDRG ASSIST IN DISPUTES OR CONFLICTS?

A: While HDRG can be engaged at any time, early dispute resolution processes are key to avoiding much of the cost, time, distraction and risk of a dispute.  Through Early Dispute Resolution (EDR), the parties themselves take immediate control. Pursuing a constructive, consensual process at the beginning of a conflict, assisted by an impartial physician and a complementary neutral with legal background, can save time (often years) and tens (even hundreds) of thousands of dollars; and, most importantly, this approach can produce a better result than what usually occurs in court.

Q. IS HEALTHCARE DIFFERENT FROM OTHER DISPUTES?

Yes.  The practice of medicine depends upon a professional knowledge, culture, and language that is acquired over years of study and experience.  Healthcare delivery is complex, complicated, and by its very nature carries risks, some of which are avoidable and some not.   The engagement of a neutral physician from the onset is instrumental in helping parties work through a conflict that involves healthcare professionals, and/or the technical aspects of patient care or the healthcare system.   This approach avoids the unnecessary costs and risks of litigation, which leaves resolution to judges or juries who are unfamiliar with medicine, its practice, and outcomes.  When the expertise is impartial and constructive, as opposed to the hired gun approach of conflicting medical experts in litigation, the goal of a fair and consensual settlement is significantly increased.

Q: IS THERE A RISK TO ENGAGING IN EARLY DISPUTE RESOLUTION?

A: If a settlement is not reached at an early stage of the dispute, there is no risk or compromise to either participant’s litigation position. The confidential discussions and outcomes of the mediation are not admissible in court.   More importantly, each party will have learned more about how best to move forward in litigation or to reach settlement at a later point in the case.

The only “risk” of engaging in early dispute resolution is the cost of the process.  However, unlike litigation or arbitration, the cost is transparent, known, and agreed to by both parties at the initiation of the agreement.   Any cost of early mediation is usually offset by a greater understanding of how to approach litigation to avoid future unnecessary cost and delay, thus saving expense and time over the entire course of a dispute – even should it proceed to court.

Q: WHY DOES EACH HDRG ENGAGEMENT INCLUDE BOTH A PHYSICIAN AND A MEDIATOR WITH LEGAL BACKGROUND?

A: HDRG is unique in that a physician mediator, who assists with objective and impartial analysis of the core medical issues, works together with a mediator with legal background who coordinates the process, keeping the discussion focused on interests, objectives and best outcomes for all parties.

Neutral clinical and healthcare expertise enables a fully-informed, open discussion of the medicine and healthcare-specific issues.  The HDRG mediator team approach improves the likelihood that the parties will reach a successful settlement.

Neutral co-mediators skilled in the substance and the process make for a more satisfactory outcome than that achieved in litigation or through the parties negotiating on their own. Customary reliance on lawyers for guidance can prevent disputants from considering the advantages and opportunities presented by engaging in a consensual process at the outset of a dispute. Rather than taking a reflexively aggressive initial position, hoping to cause the other side to make concessions as the dispute proceeds, the early, positive and direct engagement by the parties creates the opportunity to achieve a better result with less cost, risk, delay and aggravation.

Q: DO PARTIES HAVE ALL THE INFORMATION THEY NEED TO BE ABLE TO REACH A SETTLEMENT EARLY IN A DISPUTE?

A: Obtaining the information sufficient to make the decisions called for in considering and reaching a resolution is fundamental to structuring a process upon which the parties agree.  Any information necessary for a party to fully engage can be obtained. Exchange and receipt of necessary information is a central tenet of early mediation, and addresses the reservation that some lawyers express because they are accustomed to discovery before participating in settlement discussions.  That reservation is more a creature of habit than of necessity when the need for information is fully accommodated within the mediation itself.  Discovery, focused on what is needed to advance the settlement discussions, may be undertaken to fully inform parties so they can reach a resolution far more quickly and less expensively than through the drawn out, adversarial and costly battles characteristic of litigation discovery.

Q: DO THE PARTIES HAVE THEIR OWN CHOICE OF REPRESENTATION?

A: Yes.  All parties may be represented by counsel of their choice who then may participate in the process as advocate and adviser.  It is usually the case that the parties involved in conflict at this level have engaged counsel who, in turn, participates in the selection of the mediators.

Q: IS HDRG’s PROCESS THE SAME OF ALL DISPUTES?

A: No.  HDRG works with all parties at the outset to tailor the resolution process in a manner best suited to the type of dispute and objectives of the parties themselves. Precepts of self-determination, consensual agreement, and confidentiality are maintained throughout. The “right process” well-executed will make all the difference, enabling the result to be based on the parties’ interests and needs.

Q: WHAT IS THE COST OF A DISPUTE THAT GOES TO TRIAL?

A: This is unpredictable.  The pre-trial discovery and motion process, and the trial itself, is highly time-intensive. Lawyers’ and experts’ fees in complex cases, which healthcare is by its very nature, can run into the hundreds of thousands of dollars for each party.  Even simple cases can cost well into five figures.  As well, indirect and intangible costs such as distraction, emotional investment and risk to reputation can mount even higher. Perhaps most importantly, the decision that a judge or jury will make, and over which neither party has control, is never predictable.

In HDRG’s process, the basis for the cost is fully understood by the parties and agreed upon in advance. Discussion of the cost of any process is part of the initial consultation with clients relating to their specific dispute.

Q: WHAT IS THE ROLE OF EXPERT WITNESSES?

A: Expert witnesses are hired and paid by each party to advocate for the elements of their case that depend on a technical understanding and explanation of the issues that are beyond the knowledge of the lay person. In medical malpractice or other healthcare related cases, experts take conflicting positions on the medicine or the quality of care, leaving the outcome to non-expert judges or juries to decide which expert witness is the most persuasive.

In HDRG’s process, the parties may find that, on occasion, they wish additional expertise that can aid in the settlement of their conflict. If this is the case, HDRG has access to a broad group of experts from which the parties may select to answer specific questions; alternatively, the parties together may agree that they wish to engage a known expert to provide additional information.  This very much differs from the selection of experts by one side or another, and reflects both the flexibility and creativity of the HDRG process in conforming to the needs of the parties.

Q: WHAT IS THE DIFFERENCE BETWEEN MEDIATION AND ARBITRATION?

A: Mediation requires the agreement of all parties to engage in the process, the selection of the mediators, and the final outcome of the dispute.  Nothing happens without that agreement, and no process, mediator, or result can be imposed on a party.  Each phase requires all parties’ consent, and a party can withdraw at any time.

Arbitration also requires that the parties agree in advance to the process.  However, the parties may not have complete control over selection of the arbitrator(s), and arbitration is adversarial and leads to an adjudicated result, as with a court case. The arbitrator (either single, or sometimes a panel of three) decides the final outcome without the agreement of the parties and with very limited opportunity to appeal an unfavorable result.  Both an agreement to arbitrate and the outcome of the arbitration are enforceable in court.

Arbitration is suitable when the parties prefer someone else to make the decision about the conflict, in a setting that is less formal than a court.  However, the risk of the outcome is similar to that of a trial; and, in some instances, it may be just as expensive as a court trial.

Q: DOES HDRG EVER ENGAGE IN ARBITRATION?

A: As part of the initial consideration of what kind of process is most well-suited to a particular dispute, HDRG addresses all potential processes which a client wishes to explore

Q: IS HDRG’s PROCESS SUITABLE FOR CLASS ACTIONS?

A: Yes.  Co-mediation is particularly well-suited to cases of any kind that require sorting out of complex issues in order to reach a common understanding of the facts and applicable medical standards.  Unlike a litigated forum, mediation focuses on the interests of the parties to the dispute and what they want to achieve through a resolution.  Combining impartial medical insight with an interest-based process designed to achieve those objectives makes HDRG co-mediation particularly helpful in managing and resolving class actions that can otherwise take years and thousands of hours to complete.

Q: IS THE LAW CONSIDERED IN MEDIATION?

A: Yes.  A primary benefit of mediation is that a party can bring to the table any issue, legal or non-legal, that is potentially relevant to reaching an acceptable outcome.  This often occurs by breaking through disagreements on how the law is applied to the facts of the case and exploring terms of a settlement that address the parties’ respective interests. These interests may transcend legal considerations in the formulation of a favorable resolution.

While the saying goes that parties to mediation “bargain in the shadow of the law” (meaning they attempt to come to a resolution that considers what might happen in court), the more important element of the mediation process is that each party advances how its own goals, purposes, or interests should be weighed in a resolution of their dispute.

Q: DO ALL ADVERSE OUTCOMES OR INJURIES NEED TO BE COMPENSATED?

A: No. In litigation, the standard applied is that an injury is compensable when the provider/physician breached the applicable standard of medical care and the breach was the proximate cause of an injury.  However, oftentimes, the compensability or remediation for injury is not black and white.  This may be due to uncertainty about:  the applicable standards of performance; clarity around the involvement of the multiple components of the healthcare system; or an understanding of the long-term consequences of the injury.

One clear benefit of mediation is that the process can address those uncertainties in the critical context of what went wrong (without legal consideration of blame or fault) through enhanced communication about what outcome makes the most sense to each of the parties.  There may be issues of import other than monetary compensation that are critical to the resolution of the dispute which mediation, unlike litigation, can address.  Thus, mediation helps resolve the claim in the context of mutual interests, while also eliminating the inherent risk of a court trial.

Q: HOW OFTEN DOES THE MEDIATION RESULT IN A SETTLEMENT?

A: From years of experience, mediation usually leads to resolution of the dispute.   When the focus is on interests and not just a battle of positions, the level of satisfaction of the parties is also high, as they have engaged directly with control over a process focused on their real objectives, as distinct from litigation.

Most (>95%) cases never go to trial, ending in a settlement after years of legal wrangling, huge costs, and highly contentious feelings, even animus, between the parties.   This often occurs without the direct involvement of the clients.  Thus, while it is possible to engage in mediation at any time during a dispute, mediation at the outset or early in a dispute, rather than after years of litigation on the eve of a trial, has several advantages:   it saves substantial expense and time, and it helps preserve relationships.  With the assistance of the mediators, the discussion can focus on the information needed to reach a reasonable resolution, not just on blunderbuss discovery that may ultimately only serve to inflate the cost of a dispute. Once the necessary information is brought to bear, the parties can negotiate, with mediator guidance and coaching, to reach a result that serves their interests.

Even if the parties do not settle their dispute early on, they have a much better idea of what the litigation will entail and how to go about it; alternatively, they may have gained a stronger foundation for a resolution when the time is right before a trial is imminent. Hence, there is no downside to early mediation – only an upside.

Q: HOW DOES AN AGREEMENT IN MEDIATION AFFECT REPORTING TO THE NATIONAL PRACTITIONER DATABANK?

A: The National Practitioner Data Bank (NPDB), established by Congress in 1986, exists to promote healthcare quality and prevent abuse in the healthcare delivery system.

The role of this data bank is unique to the practice of medicine. It allows poor performance or abuse attributed to practitioners to be available nationally (to healthcare entities, licensing boards), not just locally or at the state level.   It is a repository of information about certain bad outcomes and malpractice related to healthcare practitioners, providers, and suppliers.   Individuals or entities that are reported have the right to access those reports, otherwise the reports are confidential and not available in the public forum.

An outcome that entails a payment by the physician (or his/her insurer) to the patient requires reporting to the data bank.   Fear of the consequences of reporting can cause physicians to decline to settle and choose to incur the risks, including financial and emotional, of a trial (after which a verdict for the patient must also be reported).  Mediation allows the involved physician and healthcare providers to become part of the discussion about the healthcare delivered and the issues in dispute.  The assistance of a neutral physician mediator is a unique advantage of HDRG’s model, lending a broad understanding of healthcare to help guide the discussion toward responsible outcomes.

Q: WHEN DOES HDRG ASSIST IN DISPUTES OR CONFLICTS?

A: While HDRG can be engaged at any time, early dispute resolution processes are key to avoiding much of the cost, time, distraction and risk of a dispute.  Through Early Dispute Resolution (EDR), the parties themselves take immediate control. Pursuing a constructive, consensual process at the beginning of a conflict, assisted by an impartial physician and a complementary neutral with legal background, can save time (often years) and tens (even hundreds) of thousands of dollars; and, most importantly, this approach can produce a better result than what usually occurs in court.

Q. IS HEALTHCARE DIFFERENT FROM OTHER DISPUTES?

Yes.  The practice of medicine depends upon a professional knowledge, culture, and language that is acquired over years of study and experience.  Healthcare delivery is complex, complicated, and by its very nature carries risks, some of which are avoidable and some not.   The engagement of a neutral physician from the onset is instrumental in helping parties work through a conflict that involves healthcare professionals, and/or the technical aspects of patient care or the healthcare system.   This approach avoids the unnecessary costs and risks of litigation, which leaves resolution to judges or juries who are unfamiliar with medicine, its practice, and outcomes.  When the expertise is impartial and constructive, as opposed to the hired gun approach of conflicting medical experts in litigation, the goal of a fair and consensual settlement is significantly increased.

Q: WHY DOES EACH HDRG ENGAGEMENT INCLUDE BOTH A PHYSICIAN AND A MEDIATOR WITH LEGAL BACKGROUND?

A: HDRG is unique in that a physician mediator, who assists with objective and impartial analysis of the core medical issues, works together with a mediator with legal background who coordinates the process, keeping the discussion focused on interests, objectives and best outcomes for all parties.

Neutral clinical and healthcare expertise enables a fully-informed, open discussion of the medicine and healthcare-specific issues.  The HDRG mediator team approach improves the likelihood that the parties will reach a successful settlement.

Neutral co-mediators skilled in the substance and the process make for a more satisfactory outcome than that achieved in litigation or through the parties negotiating on their own. Customary reliance on lawyers for guidance can prevent disputants from considering the advantages and opportunities presented by engaging in a consensual process at the outset of a dispute. Rather than taking a reflexively aggressive initial position, hoping to cause the other side to make concessions as the dispute proceeds, the early, positive and direct engagement by the parties creates the opportunity to achieve a better result with less cost, risk, delay and aggravation.

Q: DO THE PARTIES HAVE THEIR OWN CHOICE OF REPRESENTATION?

A: Yes.  All parties may be represented by counsel of their choice who then may participate in the process as advocate and adviser.  It is usually the case that the parties involved in conflict at this level have engaged counsel who, in turn, participates in the selection of the mediators.

Q: IS HDRG’s PROCESS THE SAME OF ALL DISPUTES?

A: No.  HDRG works with all parties at the outset to tailor the resolution process in a manner best suited to the type of dispute and objectives of the parties themselves. Precepts of self-determination, consensual agreement, and confidentiality are maintained throughout. The “right process” well-executed will make all the difference, enabling the result to be based on the parties’ interests and needs.

Q: WHAT IS THE COST OF A DISPUTE THAT GOES TO TRIAL?

A: This is unpredictable.  The pre-trial discovery and motion process, and the trial itself, is highly time-intensive. Lawyers’ and experts’ fees in complex cases, which healthcare is by its very nature, can run into the hundreds of thousands of dollars for each party.  Even simple cases can cost well into five figures.  As well, indirect and intangible costs such as distraction, emotional investment and risk to reputation can mount even higher. Perhaps most importantly, the decision that a judge or jury will make, and over which neither party has control, is never predictable.

In HDRG’s process, the basis for the cost is fully understood by the parties and agreed upon in advance. Discussion of the cost of any process is part of the initial consultation with clients relating to their specific dispute.

Q: WHAT IS THE ROLE OF EXPERT WITNESSES?

A: Expert witnesses are hired and paid by each party to advocate for the elements of their case that depend on a technical understanding and explanation of the issues that are beyond the knowledge of the lay person. In medical malpractice or other healthcare related cases, experts take conflicting positions on the medicine or the quality of care, leaving the outcome to non-expert judges or juries to decide which expert witness is the most persuasive.

In HDRG’s process, the parties may find that, on occasion, they wish additional expertise that can aid in the settlement of their conflict. If this is the case, HDRG has access to a broad group of experts from which the parties may select to answer specific questions; alternatively, the parties together may agree that they wish to engage a known expert to provide additional information.  This very much differs from the selection of experts by one side or another, and reflects both the flexibility and creativity of the HDRG process in conforming to the needs of the parties.

Q: WHAT IS THE DIFFERENCE BETWEEN MEDIATION AND ARBITRATION?

A: Mediation requires the agreement of all parties to engage in the process, the selection of the mediators, and the final outcome of the dispute.  Nothing happens without that agreement, and no process, mediator, or result can be imposed on a party.  Each phase requires all parties’ consent, and a party can withdraw at any time.

Arbitration also requires that the parties agree in advance to the process.  However, the parties may not have complete control over selection of the arbitrator(s), and arbitration is adversarial and leads to an adjudicated result, as with a court case. The arbitrator (either single, or sometimes a panel of three) decides the final outcome without the agreement of the parties and with very limited opportunity to appeal an unfavorable result.  Both an agreement to arbitrate and the outcome of the arbitration are enforceable in court.

Arbitration is suitable when the parties prefer someone else to make the decision about the conflict, in a setting that is less formal than a court.  However, the risk of the outcome is similar to that of a trial; and, in some instances, it may be just as expensive as a court trial.

Q: IS HDRG’s PROCESS SUITABLE FOR CLASS ACTIONS?

A: Yes.  Co-mediation is particularly well-suited to cases of any kind that require sorting out of complex issues in order to reach a common understanding of the facts and applicable medical standards.  Unlike a litigated forum, mediation focuses on the interests of the parties to the dispute and what they want to achieve through a resolution.  Combining impartial medical insight with an interest-based process designed to achieve those objectives makes HDRG co-mediation particularly helpful in managing and resolving class actions that can otherwise take years and thousands of hours to complete.

Q: IS THE LAW CONSIDERED IN MEDIATION?

A: Yes.  A primary benefit of mediation is that a party can bring to the table any issue, legal or non-legal, that is potentially relevant to reaching an acceptable outcome.  This often occurs by breaking through disagreements on how the law is applied to the facts of the case and exploring terms of a settlement that address the parties’ respective interests. These interests may transcend legal considerations in the formulation of a favorable resolution.

While the saying goes that parties to mediation “bargain in the shadow of the law” (meaning they attempt to come to a resolution that considers what might happen in court), the more important element of the mediation process is that each party advances how its own goals, purposes, or interests should be weighed in a resolution of their dispute.

Q: DO ALL ADVERSE OUTCOMES OR INJURIES NEED TO BE COMPENSATED?

A: No. In litigation, the standard applied is that an injury is compensable when the provider/physician breached the applicable standard of medical care and the breach was the proximate cause of an injury.  However, oftentimes, the compensability or remediation for injury is not black and white.  This may be due to uncertainty about:  the applicable standards of performance; clarity around the involvement of the multiple components of the healthcare system; or an understanding of the long-term consequences of the injury.

One clear benefit of mediation is that the process can address those uncertainties in the critical context of what went wrong (without legal consideration of blame or fault) through enhanced communication about what outcome makes the most sense to each of the parties.  There may be issues of import other than monetary compensation that are critical to the resolution of the dispute which mediation, unlike litigation, can address.  Thus, mediation helps resolve the claim in the context of mutual interests, while also eliminating the inherent risk of a court trial.

Q: HOW OFTEN DOES THE MEDIATION RESULT IN A SETTLEMENT?

A: From years of experience, mediation usually leads to resolution of the dispute.   When the focus is on interests and not just a battle of positions, the level of satisfaction of the parties is also high, as they have engaged directly with control over a process focused on their real objectives, as distinct from litigation.

Most (>95%) cases never go to trial, ending in a settlement after years of legal wrangling, huge costs, and highly contentious feelings, even animus, between the parties.   This often occurs without the direct involvement of the clients.  Thus, while it is possible to engage in mediation at any time during a dispute, mediation at the outset or early in a dispute, rather than after years of litigation on the eve of a trial, has several advantages:   it saves substantial expense and time, and it helps preserve relationships.  With the assistance of the mediators, the discussion can focus on the information needed to reach a reasonable resolution, not just on blunderbuss discovery that may ultimately only serve to inflate the cost of a dispute. Once the necessary information is brought to bear, the parties can negotiate, with mediator guidance and coaching, to reach a result that serves their interests.

Even if the parties do not settle their dispute early on, they have a much better idea of what the litigation will entail and how to go about it; alternatively, they may have gained a stronger foundation for a resolution when the time is right before a trial is imminent. Hence, there is no downside to early mediation – only an upside.

Q: WHEN DOES HDRG ASSIST IN DISPUTES OR CONFLICTS?

A: While HDRG can be engaged at any time, early dispute resolution processes are key to avoiding much of the cost, time, distraction and risk of a dispute.  Through Early Dispute Resolution (EDR), the parties themselves take immediate control. Pursuing a constructive, consensual process at the beginning of a conflict, assisted by an impartial physician and a complementary neutral with legal background, can save time (often years) and tens (even hundreds) of thousands of dollars; and, most importantly, this approach can produce a better result than what usually occurs in court.

Q: IS THERE A RISK TO ENGAGING IN EARLY DISPUTE RESOLUTION?

A: If a settlement is not reached at an early stage of the dispute, there is no risk or compromise to either participant’s litigation position. The confidential discussions and outcomes of the mediation are not admissible in court.   More importantly, each party will have learned more about how best to move forward in litigation or to reach settlement at a later point in the case.

The only “risk” of engaging in early dispute resolution is the cost of the process.  However, unlike litigation or arbitration, the cost is transparent, known, and agreed to by both parties at the initiation of the agreement.   Any cost of early mediation is usually offset by a greater understanding of how to approach litigation to avoid future unnecessary cost and delay, thus saving expense and time over the entire course of a dispute – even should it proceed to court.

Q. IS HEALTHCARE DIFFERENT FROM OTHER DISPUTES?

Yes.  The practice of medicine depends upon a professional knowledge, culture, and language that is acquired over years of study and experience.  Healthcare delivery is complex, complicated, and by its very nature carries risks, some of which are avoidable and some not.   The engagement of a neutral physician from the onset is instrumental in helping parties work through a conflict that involves healthcare professionals, and/or the technical aspects of patient care or the healthcare system.   This approach avoids the unnecessary costs and risks of litigation, which leaves resolution to judges or juries who are unfamiliar with medicine, its practice, and outcomes.  When the expertise is impartial and constructive, as opposed to the hired gun approach of conflicting medical experts in litigation, the goal of a fair and consensual settlement is significantly increased.

Q: WHY DOES EACH HDRG ENGAGEMENT INCLUDE BOTH A PHYSICIAN AND A MEDIATOR WITH LEGAL BACKGROUND?

A: HDRG is unique in that a physician mediator, who assists with objective and impartial analysis of the core medical issues, works together with a mediator with legal background who coordinates the process, keeping the discussion focused on interests, objectives and best outcomes for all parties.

Neutral clinical and healthcare expertise enables a fully-informed, open discussion of the medicine and healthcare-specific issues.  The HDRG mediator team approach improves the likelihood that the parties will reach a successful settlement.

Neutral co-mediators skilled in the substance and the process make for a more satisfactory outcome than that achieved in litigation or through the parties negotiating on their own. Customary reliance on lawyers for guidance can prevent disputants from considering the advantages and opportunities presented by engaging in a consensual process at the outset of a dispute. Rather than taking a reflexively aggressive initial position, hoping to cause the other side to make concessions as the dispute proceeds, the early, positive and direct engagement by the parties creates the opportunity to achieve a better result with less cost, risk, delay and aggravation.

Q: DO THE PARTIES HAVE THEIR OWN CHOICE OF REPRESENTATION?

A: Yes.  All parties may be represented by counsel of their choice who then may participate in the process as advocate and adviser.  It is usually the case that the parties involved in conflict at this level have engaged counsel who, in turn, participates in the selection of the mediators.

Q: IS HDRG’s PROCESS THE SAME OF ALL DISPUTES?

A: No.  HDRG works with all parties at the outset to tailor the resolution process in a manner best suited to the type of dispute and objectives of the parties themselves. Precepts of self-determination, consensual agreement, and confidentiality are maintained throughout. The “right process” well-executed will make all the difference, enabling the result to be based on the parties’ interests and needs.

Q: WHAT IS THE COST OF A DISPUTE THAT GOES TO TRIAL?

A: This is unpredictable.  The pre-trial discovery and motion process, and the trial itself, is highly time-intensive. Lawyers’ and experts’ fees in complex cases, which healthcare is by its very nature, can run into the hundreds of thousands of dollars for each party.  Even simple cases can cost well into five figures.  As well, indirect and intangible costs such as distraction, emotional investment and risk to reputation can mount even higher. Perhaps most importantly, the decision that a judge or jury will make, and over which neither party has control, is never predictable.

In HDRG’s process, the basis for the cost is fully understood by the parties and agreed upon in advance. Discussion of the cost of any process is part of the initial consultation with clients relating to their specific dispute.

Q: WHAT IS THE ROLE OF EXPERT WITNESSES?

A: Expert witnesses are hired and paid by each party to advocate for the elements of their case that depend on a technical understanding and explanation of the issues that are beyond the knowledge of the lay person. In medical malpractice or other healthcare related cases, experts take conflicting positions on the medicine or the quality of care, leaving the outcome to non-expert judges or juries to decide which expert witness is the most persuasive.

In HDRG’s process, the parties may find that, on occasion, they wish additional expertise that can aid in the settlement of their conflict. If this is the case, HDRG has access to a broad group of experts from which the parties may select to answer specific questions; alternatively, the parties together may agree that they wish to engage a known expert to provide additional information.  This very much differs from the selection of experts by one side or another, and reflects both the flexibility and creativity of the HDRG process in conforming to the needs of the parties.

Q: WHAT IS THE DIFFERENCE BETWEEN MEDIATION AND ARBITRATION?

A: Mediation requires the agreement of all parties to engage in the process, the selection of the mediators, and the final outcome of the dispute.  Nothing happens without that agreement, and no process, mediator, or result can be imposed on a party.  Each phase requires all parties’ consent, and a party can withdraw at any time.

Arbitration also requires that the parties agree in advance to the process.  However, the parties may not have complete control over selection of the arbitrator(s), and arbitration is adversarial and leads to an adjudicated result, as with a court case. The arbitrator (either single, or sometimes a panel of three) decides the final outcome without the agreement of the parties and with very limited opportunity to appeal an unfavorable result.  Both an agreement to arbitrate and the outcome of the arbitration are enforceable in court.

Arbitration is suitable when the parties prefer someone else to make the decision about the conflict, in a setting that is less formal than a court.  However, the risk of the outcome is similar to that of a trial; and, in some instances, it may be just as expensive as a court trial.

Q: IS HDRG’s PROCESS SUITABLE FOR CLASS ACTIONS?

A: Yes.  Co-mediation is particularly well-suited to cases of any kind that require sorting out of complex issues in order to reach a common understanding of the facts and applicable medical standards.  Unlike a litigated forum, mediation focuses on the interests of the parties to the dispute and what they want to achieve through a resolution.  Combining impartial medical insight with an interest-based process designed to achieve those objectives makes HDRG co-mediation particularly helpful in managing and resolving class actions that can otherwise take years and thousands of hours to complete.

Q: IS THE LAW CONSIDERED IN MEDIATION?

A: Yes.  A primary benefit of mediation is that a party can bring to the table any issue, legal or non-legal, that is potentially relevant to reaching an acceptable outcome.  This often occurs by breaking through disagreements on how the law is applied to the facts of the case and exploring terms of a settlement that address the parties’ respective interests. These interests may transcend legal considerations in the formulation of a favorable resolution.

While the saying goes that parties to mediation “bargain in the shadow of the law” (meaning they attempt to come to a resolution that considers what might happen in court), the more important element of the mediation process is that each party advances how its own goals, purposes, or interests should be weighed in a resolution of their dispute.

Q: DO ALL ADVERSE OUTCOMES OR INJURIES NEED TO BE COMPENSATED?

A: No. In litigation, the standard applied is that an injury is compensable when the provider/physician breached the applicable standard of medical care and the breach was the proximate cause of an injury.  However, oftentimes, the compensability or remediation for injury is not black and white.  This may be due to uncertainty about:  the applicable standards of performance; clarity around the involvement of the multiple components of the healthcare system; or an understanding of the long-term consequences of the injury.

One clear benefit of mediation is that the process can address those uncertainties in the critical context of what went wrong (without legal consideration of blame or fault) through enhanced communication about what outcome makes the most sense to each of the parties.  There may be issues of import other than monetary compensation that are critical to the resolution of the dispute which mediation, unlike litigation, can address.  Thus, mediation helps resolve the claim in the context of mutual interests, while also eliminating the inherent risk of a court trial.

Q: HOW OFTEN DOES THE MEDIATION RESULT IN A SETTLEMENT?

A: From years of experience, mediation usually leads to resolution of the dispute.   When the focus is on interests and not just a battle of positions, the level of satisfaction of the parties is also high, as they have engaged directly with control over a process focused on their real objectives, as distinct from litigation.

Most (>95%) cases never go to trial, ending in a settlement after years of legal wrangling, huge costs, and highly contentious feelings, even animus, between the parties.   This often occurs without the direct involvement of the clients.  Thus, while it is possible to engage in mediation at any time during a dispute, mediation at the outset or early in a dispute, rather than after years of litigation on the eve of a trial, has several advantages:   it saves substantial expense and time, and it helps preserve relationships.  With the assistance of the mediators, the discussion can focus on the information needed to reach a reasonable resolution, not just on blunderbuss discovery that may ultimately only serve to inflate the cost of a dispute. Once the necessary information is brought to bear, the parties can negotiate, with mediator guidance and coaching, to reach a result that serves their interests.

Even if the parties do not settle their dispute early on, they have a much better idea of what the litigation will entail and how to go about it; alternatively, they may have gained a stronger foundation for a resolution when the time is right before a trial is imminent. Hence, there is no downside to early mediation – only an upside.

Q: HOW DOES AN AGREEMENT IN MEDIATION AFFECT REPORTING TO THE NATIONAL PRACTITIONER DATABANK?

A: The National Practitioner Data Bank (NPDB), established by Congress in 1986, exists to promote healthcare quality and prevent abuse in the healthcare delivery system.

The role of this data bank is unique to the practice of medicine. It allows poor performance or abuse attributed to practitioners to be available nationally (to healthcare entities, licensing boards), not just locally or at the state level.   It is a repository of information about certain bad outcomes and malpractice related to healthcare practitioners, providers, and suppliers.   Individuals or entities that are reported have the right to access those reports, otherwise the reports are confidential and not available in the public forum.

An outcome that entails a payment by the physician (or his/her insurer) to the patient requires reporting to the data bank.   Fear of the consequences of reporting can cause physicians to decline to settle and choose to incur the risks, including financial and emotional, of a trial (after which a verdict for the patient must also be reported).  Mediation allows the involved physician and healthcare providers to become part of the discussion about the healthcare delivered and the issues in dispute.  The assistance of a neutral physician mediator is a unique advantage of HDRG’s model, lending a broad understanding of healthcare to help guide the discussion toward responsible outcomes.

Q: WHEN DOES HDRG ASSIST IN DISPUTES OR CONFLICTS?

A: While HDRG can be engaged at any time, early dispute resolution processes are key to avoiding much of the cost, time, distraction and risk of a dispute.  Through Early Dispute Resolution (EDR), the parties themselves take immediate control. Pursuing a constructive, consensual process at the beginning of a conflict, assisted by an impartial physician and a complementary neutral with legal background, can save time (often years) and tens (even hundreds) of thousands of dollars; and, most importantly, this approach can produce a better result than what usually occurs in court.

Q: IS THERE A RISK TO ENGAGING IN EARLY DISPUTE RESOLUTION?

A: If a settlement is not reached at an early stage of the dispute, there is no risk or compromise to either participant’s litigation position. The confidential discussions and outcomes of the mediation are not admissible in court.   More importantly, each party will have learned more about how best to move forward in litigation or to reach settlement at a later point in the case.

The only “risk” of engaging in early dispute resolution is the cost of the process.  However, unlike litigation or arbitration, the cost is transparent, known, and agreed to by both parties at the initiation of the agreement.   Any cost of early mediation is usually offset by a greater understanding of how to approach litigation to avoid future unnecessary cost and delay, thus saving expense and time over the entire course of a dispute – even should it proceed to court.

Q. IS HEALTHCARE DIFFERENT FROM OTHER DISPUTES?

Yes.  The practice of medicine depends upon a professional knowledge, culture, and language that is acquired over years of study and experience.  Healthcare delivery is complex, complicated, and by its very nature carries risks, some of which are avoidable and some not.   The engagement of a neutral physician from the onset is instrumental in helping parties work through a conflict that involves healthcare professionals, and/or the technical aspects of patient care or the healthcare system.   This approach avoids the unnecessary costs and risks of litigation, which leaves resolution to judges or juries who are unfamiliar with medicine, its practice, and outcomes.  When the expertise is impartial and constructive, as opposed to the hired gun approach of conflicting medical experts in litigation, the goal of a fair and consensual settlement is significantly increased.

Q: WHY DOES EACH HDRG ENGAGEMENT INCLUDE BOTH A PHYSICIAN AND A MEDIATOR WITH LEGAL BACKGROUND?

A: HDRG is unique in that a physician mediator, who assists with objective and impartial analysis of the core medical issues, works together with a mediator with legal background who coordinates the process, keeping the discussion focused on interests, objectives and best outcomes for all parties.

Neutral clinical and healthcare expertise enables a fully-informed, open discussion of the medicine and healthcare-specific issues.  The HDRG mediator team approach improves the likelihood that the parties will reach a successful settlement.

Neutral co-mediators skilled in the substance and the process make for a more satisfactory outcome than that achieved in litigation or through the parties negotiating on their own. Customary reliance on lawyers for guidance can prevent disputants from considering the advantages and opportunities presented by engaging in a consensual process at the outset of a dispute. Rather than taking a reflexively aggressive initial position, hoping to cause the other side to make concessions as the dispute proceeds, the early, positive and direct engagement by the parties creates the opportunity to achieve a better result with less cost, risk, delay and aggravation.

Q: DO PARTIES HAVE ALL THE INFORMATION THEY NEED TO BE ABLE TO REACH A SETTLEMENT EARLY IN A DISPUTE?

A: Obtaining the information sufficient to make the decisions called for in considering and reaching a resolution is fundamental to structuring a process upon which the parties agree.  Any information necessary for a party to fully engage can be obtained. Exchange and receipt of necessary information is a central tenet of early mediation, and addresses the reservation that some lawyers express because they are accustomed to discovery before participating in settlement discussions.  That reservation is more a creature of habit than of necessity when the need for information is fully accommodated within the mediation itself.  Discovery, focused on what is needed to advance the settlement discussions, may be undertaken to fully inform parties so they can reach a resolution far more quickly and less expensively than through the drawn out, adversarial and costly battles characteristic of litigation discovery.

Q: DO THE PARTIES HAVE THEIR OWN CHOICE OF REPRESENTATION?

A: Yes.  All parties may be represented by counsel of their choice who then may participate in the process as advocate and adviser.  It is usually the case that the parties involved in conflict at this level have engaged counsel who, in turn, participates in the selection of the mediators.

Q: IS HDRG’s PROCESS THE SAME OF ALL DISPUTES?

A: No.  HDRG works with all parties at the outset to tailor the resolution process in a manner best suited to the type of dispute and objectives of the parties themselves. Precepts of self-determination, consensual agreement, and confidentiality are maintained throughout. The “right process” well-executed will make all the difference, enabling the result to be based on the parties’ interests and needs.

Q: WHAT IS THE COST OF A DISPUTE THAT GOES TO TRIAL?

A: This is unpredictable.  The pre-trial discovery and motion process, and the trial itself, is highly time-intensive. Lawyers’ and experts’ fees in complex cases, which healthcare is by its very nature, can run into the hundreds of thousands of dollars for each party.  Even simple cases can cost well into five figures.  As well, indirect and intangible costs such as distraction, emotional investment and risk to reputation can mount even higher. Perhaps most importantly, the decision that a judge or jury will make, and over which neither party has control, is never predictable.

In HDRG’s process, the basis for the cost is fully understood by the parties and agreed upon in advance. Discussion of the cost of any process is part of the initial consultation with clients relating to their specific dispute.

Q: WHAT IS THE ROLE OF EXPERT WITNESSES?

A: Expert witnesses are hired and paid by each party to advocate for the elements of their case that depend on a technical understanding and explanation of the issues that are beyond the knowledge of the lay person. In medical malpractice or other healthcare related cases, experts take conflicting positions on the medicine or the quality of care, leaving the outcome to non-expert judges or juries to decide which expert witness is the most persuasive.

In HDRG’s process, the parties may find that, on occasion, they wish additional expertise that can aid in the settlement of their conflict. If this is the case, HDRG has access to a broad group of experts from which the parties may select to answer specific questions; alternatively, the parties together may agree that they wish to engage a known expert to provide additional information.  This very much differs from the selection of experts by one side or another, and reflects both the flexibility and creativity of the HDRG process in conforming to the needs of the parties.

Q: WHAT IS THE DIFFERENCE BETWEEN MEDIATION AND ARBITRATION?

A: Mediation requires the agreement of all parties to engage in the process, the selection of the mediators, and the final outcome of the dispute.  Nothing happens without that agreement, and no process, mediator, or result can be imposed on a party.  Each phase requires all parties’ consent, and a party can withdraw at any time.

Arbitration also requires that the parties agree in advance to the process.  However, the parties may not have complete control over selection of the arbitrator(s), and arbitration is adversarial and leads to an adjudicated result, as with a court case. The arbitrator (either single, or sometimes a panel of three) decides the final outcome without the agreement of the parties and with very limited opportunity to appeal an unfavorable result.  Both an agreement to arbitrate and the outcome of the arbitration are enforceable in court.

Arbitration is suitable when the parties prefer someone else to make the decision about the conflict, in a setting that is less formal than a court.  However, the risk of the outcome is similar to that of a trial; and, in some instances, it may be just as expensive as a court trial.

Q: DOES HDRG EVER ENGAGE IN ARBITRATION?

A: As part of the initial consideration of what kind of process is most well-suited to a particular dispute, HDRG addresses all potential processes which a client wishes to explore

Q: IS HDRG’s PROCESS SUITABLE FOR CLASS ACTIONS?

A: Yes.  Co-mediation is particularly well-suited to cases of any kind that require sorting out of complex issues in order to reach a common understanding of the facts and applicable medical standards.  Unlike a litigated forum, mediation focuses on the interests of the parties to the dispute and what they want to achieve through a resolution.  Combining impartial medical insight with an interest-based process designed to achieve those objectives makes HDRG co-mediation particularly helpful in managing and resolving class actions that can otherwise take years and thousands of hours to complete.

Q: IS THE LAW CONSIDERED IN MEDIATION?

A: Yes.  A primary benefit of mediation is that a party can bring to the table any issue, legal or non-legal, that is potentially relevant to reaching an acceptable outcome.  This often occurs by breaking through disagreements on how the law is applied to the facts of the case and exploring terms of a settlement that address the parties’ respective interests. These interests may transcend legal considerations in the formulation of a favorable resolution.

While the saying goes that parties to mediation “bargain in the shadow of the law” (meaning they attempt to come to a resolution that considers what might happen in court), the more important element of the mediation process is that each party advances how its own goals, purposes, or interests should be weighed in a resolution of their dispute.

Q: DO ALL ADVERSE OUTCOMES OR INJURIES NEED TO BE COMPENSATED?

A: No. In litigation, the standard applied is that an injury is compensable when the provider/physician breached the applicable standard of medical care and the breach was the proximate cause of an injury.  However, oftentimes, the compensability or remediation for injury is not black and white.  This may be due to uncertainty about:  the applicable standards of performance; clarity around the involvement of the multiple components of the healthcare system; or an understanding of the long-term consequences of the injury.

One clear benefit of mediation is that the process can address those uncertainties in the critical context of what went wrong (without legal consideration of blame or fault) through enhanced communication about what outcome makes the most sense to each of the parties.  There may be issues of import other than monetary compensation that are critical to the resolution of the dispute which mediation, unlike litigation, can address.  Thus, mediation helps resolve the claim in the context of mutual interests, while also eliminating the inherent risk of a court trial.

Q: HOW OFTEN DOES THE MEDIATION RESULT IN A SETTLEMENT?

A: From years of experience, mediation usually leads to resolution of the dispute.   When the focus is on interests and not just a battle of positions, the level of satisfaction of the parties is also high, as they have engaged directly with control over a process focused on their real objectives, as distinct from litigation.

Most (>95%) cases never go to trial, ending in a settlement after years of legal wrangling, huge costs, and highly contentious feelings, even animus, between the parties.   This often occurs without the direct involvement of the clients.  Thus, while it is possible to engage in mediation at any time during a dispute, mediation at the outset or early in a dispute, rather than after years of litigation on the eve of a trial, has several advantages:   it saves substantial expense and time, and it helps preserve relationships.  With the assistance of the mediators, the discussion can focus on the information needed to reach a reasonable resolution, not just on blunderbuss discovery that may ultimately only serve to inflate the cost of a dispute. Once the necessary information is brought to bear, the parties can negotiate, with mediator guidance and coaching, to reach a result that serves their interests.

Even if the parties do not settle their dispute early on, they have a much better idea of what the litigation will entail and how to go about it; alternatively, they may have gained a stronger foundation for a resolution when the time is right before a trial is imminent. Hence, there is no downside to early mediation – only an upside.

Q: HOW DOES AN AGREEMENT IN MEDIATION AFFECT REPORTING TO THE NATIONAL PRACTITIONER DATABANK?

A: The National Practitioner Data Bank (NPDB), established by Congress in 1986, exists to promote healthcare quality and prevent abuse in the healthcare delivery system.

The role of this data bank is unique to the practice of medicine. It allows poor performance or abuse attributed to practitioners to be available nationally (to healthcare entities, licensing boards), not just locally or at the state level.   It is a repository of information about certain bad outcomes and malpractice related to healthcare practitioners, providers, and suppliers.   Individuals or entities that are reported have the right to access those reports, otherwise the reports are confidential and not available in the public forum.

An outcome that entails a payment by the physician (or his/her insurer) to the patient requires reporting to the data bank.   Fear of the consequences of reporting can cause physicians to decline to settle and choose to incur the risks, including financial and emotional, of a trial (after which a verdict for the patient must also be reported).  Mediation allows the involved physician and healthcare providers to become part of the discussion about the healthcare delivered and the issues in dispute.  The assistance of a neutral physician mediator is a unique advantage of HDRG’s model, lending a broad understanding of healthcare to help guide the discussion toward responsible outcomes.

Q: WHEN DOES HDRG ASSIST IN DISPUTES OR CONFLICTS?

A: While HDRG can be engaged at any time, early dispute resolution processes are key to avoiding much of the cost, time, distraction and risk of a dispute.  Through Early Dispute Resolution (EDR), the parties themselves take immediate control. Pursuing a constructive, consensual process at the beginning of a conflict, assisted by an impartial physician and a complementary neutral with legal background, can save time (often years) and tens (even hundreds) of thousands of dollars; and, most importantly, this approach can produce a better result than what usually occurs in court.

Q: IS THERE A RISK TO ENGAGING IN EARLY DISPUTE RESOLUTION?

A: If a settlement is not reached at an early stage of the dispute, there is no risk or compromise to either participant’s litigation position. The confidential discussions and outcomes of the mediation are not admissible in court.   More importantly, each party will have learned more about how best to move forward in litigation or to reach settlement at a later point in the case.

The only “risk” of engaging in early dispute resolution is the cost of the process.  However, unlike litigation or arbitration, the cost is transparent, known, and agreed to by both parties at the initiation of the agreement.   Any cost of early mediation is usually offset by a greater understanding of how to approach litigation to avoid future unnecessary cost and delay, thus saving expense and time over the entire course of a dispute – even should it proceed to court.

Q. IS HEALTHCARE DIFFERENT FROM OTHER DISPUTES?

Yes.  The practice of medicine depends upon a professional knowledge, culture, and language that is acquired over years of study and experience.  Healthcare delivery is complex, complicated, and by its very nature carries risks, some of which are avoidable and some not.   The engagement of a neutral physician from the onset is instrumental in helping parties work through a conflict that involves healthcare professionals, and/or the technical aspects of patient care or the healthcare system.   This approach avoids the unnecessary costs and risks of litigation, which leaves resolution to judges or juries who are unfamiliar with medicine, its practice, and outcomes.  When the expertise is impartial and constructive, as opposed to the hired gun approach of conflicting medical experts in litigation, the goal of a fair and consensual settlement is significantly increased.

Q: WHY DOES EACH HDRG ENGAGEMENT INCLUDE BOTH A PHYSICIAN AND A MEDIATOR WITH LEGAL BACKGROUND?

A: HDRG is unique in that a physician mediator, who assists with objective and impartial analysis of the core medical issues, works together with a mediator with legal background who coordinates the process, keeping the discussion focused on interests, objectives and best outcomes for all parties.

Neutral clinical and healthcare expertise enables a fully-informed, open discussion of the medicine and healthcare-specific issues.  The HDRG mediator team approach improves the likelihood that the parties will reach a successful settlement.

Neutral co-mediators skilled in the substance and the process make for a more satisfactory outcome than that achieved in litigation or through the parties negotiating on their own. Customary reliance on lawyers for guidance can prevent disputants from considering the advantages and opportunities presented by engaging in a consensual process at the outset of a dispute. Rather than taking a reflexively aggressive initial position, hoping to cause the other side to make concessions as the dispute proceeds, the early, positive and direct engagement by the parties creates the opportunity to achieve a better result with less cost, risk, delay and aggravation.

Q: DO PARTIES HAVE ALL THE INFORMATION THEY NEED TO BE ABLE TO REACH A SETTLEMENT EARLY IN A DISPUTE?

A: Obtaining the information sufficient to make the decisions called for in considering and reaching a resolution is fundamental to structuring a process upon which the parties agree.  Any information necessary for a party to fully engage can be obtained. Exchange and receipt of necessary information is a central tenet of early mediation, and addresses the reservation that some lawyers express because they are accustomed to discovery before participating in settlement discussions.  That reservation is more a creature of habit than of necessity when the need for information is fully accommodated within the mediation itself.  Discovery, focused on what is needed to advance the settlement discussions, may be undertaken to fully inform parties so they can reach a resolution far more quickly and less expensively than through the drawn out, adversarial and costly battles characteristic of litigation discovery.

Q: IS HDRG’s PROCESS THE SAME OF ALL DISPUTES?

A: No.  HDRG works with all parties at the outset to tailor the resolution process in a manner best suited to the type of dispute and objectives of the parties themselves. Precepts of self-determination, consensual agreement, and confidentiality are maintained throughout. The “right process” well-executed will make all the difference, enabling the result to be based on the parties’ interests and needs.

Q: DOES HDRG EVER ENGAGE IN ARBITRATION?

A: As part of the initial consideration of what kind of process is most well-suited to a particular dispute, HDRG addresses all potential processes which a client wishes to explore

Q: IS HDRG’s PROCESS SUITABLE FOR CLASS ACTIONS?

A: Yes.  Co-mediation is particularly well-suited to cases of any kind that require sorting out of complex issues in order to reach a common understanding of the facts and applicable medical standards.  Unlike a litigated forum, mediation focuses on the interests of the parties to the dispute and what they want to achieve through a resolution.  Combining impartial medical insight with an interest-based process designed to achieve those objectives makes HDRG co-mediation particularly helpful in managing and resolving class actions that can otherwise take years and thousands of hours to complete.

Q: HOW DOES AN AGREEMENT IN MEDIATION AFFECT REPORTING TO THE NATIONAL PRACTITIONER DATABANK?

A: The National Practitioner Data Bank (NPDB), established by Congress in 1986, exists to promote healthcare quality and prevent abuse in the healthcare delivery system.

The role of this data bank is unique to the practice of medicine. It allows poor performance or abuse attributed to practitioners to be available nationally (to healthcare entities, licensing boards), not just locally or at the state level.   It is a repository of information about certain bad outcomes and malpractice related to healthcare practitioners, providers, and suppliers.   Individuals or entities that are reported have the right to access those reports, otherwise the reports are confidential and not available in the public forum.

An outcome that entails a payment by the physician (or his/her insurer) to the patient requires reporting to the data bank.   Fear of the consequences of reporting can cause physicians to decline to settle and choose to incur the risks, including financial and emotional, of a trial (after which a verdict for the patient must also be reported).  Mediation allows the involved physician and healthcare providers to become part of the discussion about the healthcare delivered and the issues in dispute.  The assistance of a neutral physician mediator is a unique advantage of HDRG’s model, lending a broad understanding of healthcare to help guide the discussion toward responsible outcomes.

Q: WHEN DOES HDRG ASSIST IN DISPUTES OR CONFLICTS?

A: While HDRG can be engaged at any time, early dispute resolution processes are key to avoiding much of the cost, time, distraction and risk of a dispute.  Through Early Dispute Resolution (EDR), the parties themselves take immediate control. Pursuing a constructive, consensual process at the beginning of a conflict, assisted by an impartial physician and a complementary neutral with legal background, can save time (often years) and tens (even hundreds) of thousands of dollars; and, most importantly, this approach can produce a better result than what usually occurs in court.

Q. IS HEALTHCARE DIFFERENT FROM OTHER DISPUTES?

Yes.  The practice of medicine depends upon a professional knowledge, culture, and language that is acquired over years of study and experience.  Healthcare delivery is complex, complicated, and by its very nature carries risks, some of which are avoidable and some not.   The engagement of a neutral physician from the onset is instrumental in helping parties work through a conflict that involves healthcare professionals, and/or the technical aspects of patient care or the healthcare system.   This approach avoids the unnecessary costs and risks of litigation, which leaves resolution to judges or juries who are unfamiliar with medicine, its practice, and outcomes.  When the expertise is impartial and constructive, as opposed to the hired gun approach of conflicting medical experts in litigation, the goal of a fair and consensual settlement is significantly increased.

Q: IS THERE A RISK TO ENGAGING IN EARLY DISPUTE RESOLUTION?

A: If a settlement is not reached at an early stage of the dispute, there is no risk or compromise to either participant’s litigation position. The confidential discussions and outcomes of the mediation are not admissible in court.   More importantly, each party will have learned more about how best to move forward in litigation or to reach settlement at a later point in the case.

The only “risk” of engaging in early dispute resolution is the cost of the process.  However, unlike litigation or arbitration, the cost is transparent, known, and agreed to by both parties at the initiation of the agreement.   Any cost of early mediation is usually offset by a greater understanding of how to approach litigation to avoid future unnecessary cost and delay, thus saving expense and time over the entire course of a dispute – even should it proceed to court.

Q: WHY DOES EACH HDRG ENGAGEMENT INCLUDE BOTH A PHYSICIAN AND A MEDIATOR WITH LEGAL BACKGROUND?

A: HDRG is unique in that a physician mediator, who assists with objective and impartial analysis of the core medical issues, works together with a mediator with legal background who coordinates the process, keeping the discussion focused on interests, objectives and best outcomes for all parties.

Neutral clinical and healthcare expertise enables a fully-informed, open discussion of the medicine and healthcare-specific issues.  The HDRG mediator team approach improves the likelihood that the parties will reach a successful settlement.

Neutral co-mediators skilled in the substance and the process make for a more satisfactory outcome than that achieved in litigation or through the parties negotiating on their own. Customary reliance on lawyers for guidance can prevent disputants from considering the advantages and opportunities presented by engaging in a consensual process at the outset of a dispute. Rather than taking a reflexively aggressive initial position, hoping to cause the other side to make concessions as the dispute proceeds, the early, positive and direct engagement by the parties creates the opportunity to achieve a better result with less cost, risk, delay and aggravation.

Q: DO PARTIES HAVE ALL THE INFORMATION THEY NEED TO BE ABLE TO REACH A SETTLEMENT EARLY IN A DISPUTE?

A: Obtaining the information sufficient to make the decisions called for in considering and reaching a resolution is fundamental to structuring a process upon which the parties agree.  Any information necessary for a party to fully engage can be obtained. Exchange and receipt of necessary information is a central tenet of early mediation, and addresses the reservation that some lawyers express because they are accustomed to discovery before participating in settlement discussions.  That reservation is more a creature of habit than of necessity when the need for information is fully accommodated within the mediation itself.  Discovery, focused on what is needed to advance the settlement discussions, may be undertaken to fully inform parties so they can reach a resolution far more quickly and less expensively than through the drawn out, adversarial and costly battles characteristic of litigation discovery.

Q: DO THE PARTIES HAVE THEIR OWN CHOICE OF REPRESENTATION?

A: Yes.  All parties may be represented by counsel of their choice who then may participate in the process as advocate and adviser.  It is usually the case that the parties involved in conflict at this level have engaged counsel who, in turn, participates in the selection of the mediators.

Q: IS HDRG’s PROCESS THE SAME OF ALL DISPUTES?

A: No.  HDRG works with all parties at the outset to tailor the resolution process in a manner best suited to the type of dispute and objectives of the parties themselves. Precepts of self-determination, consensual agreement, and confidentiality are maintained throughout. The “right process” well-executed will make all the difference, enabling the result to be based on the parties’ interests and needs.

Q: WHAT IS THE COST OF A DISPUTE THAT GOES TO TRIAL?

A: This is unpredictable.  The pre-trial discovery and motion process, and the trial itself, is highly time-intensive. Lawyers’ and experts’ fees in complex cases, which healthcare is by its very nature, can run into the hundreds of thousands of dollars for each party.  Even simple cases can cost well into five figures.  As well, indirect and intangible costs such as distraction, emotional investment and risk to reputation can mount even higher. Perhaps most importantly, the decision that a judge or jury will make, and over which neither party has control, is never predictable.

In HDRG’s process, the basis for the cost is fully understood by the parties and agreed upon in advance. Discussion of the cost of any process is part of the initial consultation with clients relating to their specific dispute.

Q: WHAT IS THE DIFFERENCE BETWEEN MEDIATION AND ARBITRATION?

A: Mediation requires the agreement of all parties to engage in the process, the selection of the mediators, and the final outcome of the dispute.  Nothing happens without that agreement, and no process, mediator, or result can be imposed on a party.  Each phase requires all parties’ consent, and a party can withdraw at any time.

Arbitration also requires that the parties agree in advance to the process.  However, the parties may not have complete control over selection of the arbitrator(s), and arbitration is adversarial and leads to an adjudicated result, as with a court case. The arbitrator (either single, or sometimes a panel of three) decides the final outcome without the agreement of the parties and with very limited opportunity to appeal an unfavorable result.  Both an agreement to arbitrate and the outcome of the arbitration are enforceable in court.

Arbitration is suitable when the parties prefer someone else to make the decision about the conflict, in a setting that is less formal than a court.  However, the risk of the outcome is similar to that of a trial; and, in some instances, it may be just as expensive as a court trial.

Q: DOES HDRG EVER ENGAGE IN ARBITRATION?

A: As part of the initial consideration of what kind of process is most well-suited to a particular dispute, HDRG addresses all potential processes which a client wishes to explore

Q: IS HDRG’s PROCESS SUITABLE FOR CLASS ACTIONS?

A: Yes.  Co-mediation is particularly well-suited to cases of any kind that require sorting out of complex issues in order to reach a common understanding of the facts and applicable medical standards.  Unlike a litigated forum, mediation focuses on the interests of the parties to the dispute and what they want to achieve through a resolution.  Combining impartial medical insight with an interest-based process designed to achieve those objectives makes HDRG co-mediation particularly helpful in managing and resolving class actions that can otherwise take years and thousands of hours to complete.

Q: IS THE LAW CONSIDERED IN MEDIATION?

A: Yes.  A primary benefit of mediation is that a party can bring to the table any issue, legal or non-legal, that is potentially relevant to reaching an acceptable outcome.  This often occurs by breaking through disagreements on how the law is applied to the facts of the case and exploring terms of a settlement that address the parties’ respective interests. These interests may transcend legal considerations in the formulation of a favorable resolution.

While the saying goes that parties to mediation “bargain in the shadow of the law” (meaning they attempt to come to a resolution that considers what might happen in court), the more important element of the mediation process is that each party advances how its own goals, purposes, or interests should be weighed in a resolution of their dispute.

Q: HOW OFTEN DOES THE MEDIATION RESULT IN A SETTLEMENT?

A: From years of experience, mediation usually leads to resolution of the dispute.   When the focus is on interests and not just a battle of positions, the level of satisfaction of the parties is also high, as they have engaged directly with control over a process focused on their real objectives, as distinct from litigation.

Most (>95%) cases never go to trial, ending in a settlement after years of legal wrangling, huge costs, and highly contentious feelings, even animus, between the parties.   This often occurs without the direct involvement of the clients.  Thus, while it is possible to engage in mediation at any time during a dispute, mediation at the outset or early in a dispute, rather than after years of litigation on the eve of a trial, has several advantages:   it saves substantial expense and time, and it helps preserve relationships.  With the assistance of the mediators, the discussion can focus on the information needed to reach a reasonable resolution, not just on blunderbuss discovery that may ultimately only serve to inflate the cost of a dispute. Once the necessary information is brought to bear, the parties can negotiate, with mediator guidance and coaching, to reach a result that serves their interests.

Even if the parties do not settle their dispute early on, they have a much better idea of what the litigation will entail and how to go about it; alternatively, they may have gained a stronger foundation for a resolution when the time is right before a trial is imminent. Hence, there is no downside to early mediation – only an upside.

Q: HOW DOES AN AGREEMENT IN MEDIATION AFFECT REPORTING TO THE NATIONAL PRACTITIONER DATABANK?

A: The National Practitioner Data Bank (NPDB), established by Congress in 1986, exists to promote healthcare quality and prevent abuse in the healthcare delivery system.

The role of this data bank is unique to the practice of medicine. It allows poor performance or abuse attributed to practitioners to be available nationally (to healthcare entities, licensing boards), not just locally or at the state level.   It is a repository of information about certain bad outcomes and malpractice related to healthcare practitioners, providers, and suppliers.   Individuals or entities that are reported have the right to access those reports, otherwise the reports are confidential and not available in the public forum.

An outcome that entails a payment by the physician (or his/her insurer) to the patient requires reporting to the data bank.   Fear of the consequences of reporting can cause physicians to decline to settle and choose to incur the risks, including financial and emotional, of a trial (after which a verdict for the patient must also be reported).  Mediation allows the involved physician and healthcare providers to become part of the discussion about the healthcare delivered and the issues in dispute.  The assistance of a neutral physician mediator is a unique advantage of HDRG’s model, lending a broad understanding of healthcare to help guide the discussion toward responsible outcomes.