ADR Committee Meeting Minutes
July 10, 2003
Co-chair David Harwi opened the meeting with a quick review of the agenda, and then turned to the first item of business, an update on the statewide ADR initiative and the Governor�s proposal to use mediation in medical malpractice cases.
Mr. Harwi explained that, since our last meeting, little progress has been made in the joint efforts by representatives of the ADR Committees of the Pennsylvania, Philadelphia and Allegheny County Bar Associations and the Pennsylvania Council of Mediators to spearhead a state-wide ADR initiative. The principal reason for this is that Chief Justice Cappy of the Pennsylvania Supreme Court, acting through his designee (Justice William Lamb), has at least temporarily somewhat pre-empted the field by forming a task force charged with developing a program for mediation of med-mal cases in the State courts. This effort can be traced back to the Governor�s Plan for Medical Malpractice Liability Reform
, which contains a proposal to reduce defense costs in med-mal litigation by mediating them �at an early stage in the case,� thereby also sparing �victims of medical error� the ordeal of trial and [enabling them to] receive much needed compensation earlier.� The Governor�s Plan specifically lauds a mediation program in use by Rush Hospital., in Chicago (the �Rush Model�). Justice Lamb has convened the first meeting of this Task Force for the week of July 14. Several of the members of this Committee are also members of the Task Force, including Messrs. Coffey and Welge and Ms. Ruddell.
In the discussion that followed this introduction, a number of important points were made, including the following:
- Judge Klein is of the view that med-mal cases don�t lend themselves well to the use of real mediation, particularly if the objective is early resolution of the litigation, as is expressed in the Governor�s Plan. He pointed out, based on his experience in adjudicating many med-mal cases, that lawyers are rarely willing to consider settlement of these matters until they have completed substantial discovery in order to establish the strength of their case. According to Ms. Ruddell, who is quite familiar with the Rush Model, its operational history supports this point, because its mediation (which is really a private settlement conference utilizing essentially evaluative techniques, presided over by co-mediators, one being an experienced med-mal plaintiff�s attorney and the other being her defense counterpart) typically occurs late in the pre-trial process, after discovery has been substantially completed. If mediation of med-mal cases proves to be relatively unsuccessful, this could adversely color the attitude of the public and the Bar to its use in other situations the more readily lend themselves to mediated resolution (for example, where it is important to maintain on-going relationships between the parties or where trade-offs can occur among multiple issues).
- Ms. Ruddell also mentioned that, as successful as the Rush Model has been, it may not lend itself to widespread replication (and hasn�t been used elsewhere to date) for a number of reasons, including: the ability of the Hospital to compel participation by many physician defendants, most of whom are its employees, and the small number of insurance carriers representing the defendants.
- Mr. Coffey circulated his discussion draft of a possible med-mal mediation program, which he intends to present to the Task Force at its forthcoming meeting. He solicited comments and suggested improvements be e-mailed to him.
- Several Committee members suggested that the Task Force should be urged to keep an open mind about what mediation model or models to recommend, particularly if early intervention is desired. The members of this Committee who also serve on the Task Force were asked to convey this message and to provide on-going liaison between the Bar ADR Committees and the Task Force. In addition, the Co-chairs were asked to encourage the participants in the statewide initiative to continue to press forward on developing a plan for a much broader approach to the problem of enhancing ADR in Pennsylvania.
In the few remaining minutes of the meeting, Mr. Harwi touched on the recent successful PBI program (�Maximizing Your Mediations�) in which many committee members participated, reminded everyone about making suggestions to the co-chairs for speakers (and topics for discussion) at future Committee meetings, and alerted those in attendance to the proposed rule for the creation of a roster of neutrals by the Federal Mediation and Conciliation Service, which can be found on the FCMS Web site
As usual, time ran out before the agenda did. Consequently, the uncovered items will be included in the agenda for the next meeting, which will be Sept. 4.