What is mediation and how is a nursing home abuse case mediated?

This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Schenk Firm of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk: Hello out there and thanks for joining us. My name is Rob Schenk.

Smith: And I’m Schenk Firm.

Schenk: And we are Georgia trial lawyers and we just so happen to be your hosts for the Nursing Home Abuse Podcast. Welcome and thanks for joining us.

Smith: Thanks for joining.

Schenk: Lots of good things on the horizon today, a lot of interesting topics to get into. Before we went on air, we were talking about the television program, “Hollywood Squares.” I think that my favorite Hollywood Square, she was on Scooby Doo one time. She was a comedian in the 60s and 70s, and by the 80s, she was completely crazy. What was her name?

Smith: I can’t remember any of those hee-haw Hollywood Square…

Schenk: Phyllis Diller.

Smith: Phyllis Diller.

Schenk: Her name was Phyllis Diller. Phyllis Diller was my favorite. I didn’t understand, but she seemed like she would have been a part of our family, like she’s kind of crazy. I think she smoked a bunch of cigarettes.

Smith: Oh yeah, she absolutely did.

Schenk: But she was on Scooby Doo, which was awesome.

Smith: Who was the guy that was like the middle square that was clearly at the time, because of social conventions, was closeted, but everybody understood that he was. He was on Johnny Carson all the time?

Schenk: The guy who throws confetti?

Smith: No, not that guy. There are like two or three of them. Anyways, I can’t remember his name.

Schenk: Yeah, that was good.

Smith: That was a good story.

Schenk: Anyways, what I was going to say about Hollywood Squares is that I feel like we, because as we record this, we’re looking into a monitor, and I feel like we are – we don’t call them contestants – we’re guests on the Hollywood Squares program, because we are appearing – as we do this, we’re looking into the camera, but the camera is attached to a monitor, and I feel like I should be saying like, “X gets the square,” or something like that.

Smith: I can’t wait for when this is finished.

Schenk: Well you made it longer than it should have. We could have just quit with Phyllis Diller, but you had to add yours.

Smith: All right.

Schenk: Anyways, lots of good things aside from this on the podcast today. A question that we receive often is do we, should we, how do we mediate a nursing home claim? So in other words, if you or your loved one has been injured in a nursing home and you might not necessarily want to go to trial, or there’s the advantages and disadvantages of filing a lawsuit and going that route, what does that mean to mediate a claim? Mediation is an alternative to filing a lawsuit and taking a case all the way to verdict. It is an alternative dispute resolution method, and like I said, the alternative to litigation.

Mediation generally is done at the leisure of the parties. Sometimes, it’s mandatory and obligated by a judge, so if you’ve already filed a lawsuit in a case, sometimes a judge will say you’ve got to go and mediate this. And sometimes it is obligated by contract. So for example, if your loved one has signed an arbitration and/or mediation contract that actually has in the nursing home contract has mandatory mediation and mandatory arbitration, then you’re obligated to mediate in that instance. But most often, and particularly in a lot of the cases that we have, the parties will choose to mediate rather than go through the normal conventions of a lawsuit.

So mediation is where from a logistical standpoint, the parties will go to one location and oftentimes it starts off where the parties are all in the same room, so I’ll paint the picture for you. Oftentimes it’s a long conference table. You’re going to have the mediator, who is a neutral person to the parties – in other words, it’s somebody who has no dog in the fight, that has no stake in the claim. The mediator oftentimes is picked by the mutual agreement of the parties. Depending on how the mediation gets started, the parties will say, “Hey, I like these six people, seven people,” and the other side will say, “I like these six, seven people,” and whichever one matches up, they’ll pick that one or maybe somebody will suggest – one side will suggest somebody and somebody will say yea or nay to that. There are different ways to pick the mediator.

If the mediation is occurring through private company, so for example, if your loved one, who has signed a contract with the nursing home to mediate a claim, it’s generally going to be through a particular company. So for example, the American Arbitration Association or somebody like a company like Jams, they’re private companies that happen to employ private, neutral mediators, and you’ll have to select a mediator from their stable of mediators. But at the end of the day, the mediator is going to be somebody that has no stake in the claim that’s going to hear the argument.

So anyways, back to the painting of the picture, there’s usually a long table. The mediator is at the end of it. Your loved one, if possible, or you, the family members of the loved one, and the attorney are on one side, and on the other side is generally going to be the attorney for the nursing home, oftentimes a representative of the insurance company that has a policy covering the nursing home, and then oftentimes, it’s usually a good sign, it’s a sign of good faith, a nursing home administrator or some representative…

Smith: A director of nursing.

Schenk: …A director of nursing is present as well. So you’ll have a lot of people in the room. And what happens at the beginning is usually the mediator will start off by saying something along the lines of, “We’re here to try to get this settled. It’s confidential, blah, blah, blah.” They’ll go through the ground rules of what the mediation is all about. And I mention confidential and we’ll talk about that a little bit later, but then generally it’s not a time to argue the case at that point, but generally the floor is given to the plaintiff in the case, generally the person who’s been injured in the nursing home to lay out facts, lay out argument, lay out what the position is of the injured person from an overall standpoint. And that can be as simple as a 10-second statement. It can be a 30-minute video. There are all different kinds of ways that the person that has been injured, their side is going to open the mediation through some type of statement.

The purpose of the statement, oftentimes again, is not to argue the case. It’s not to persuade somebody. It’s just to basically a couple things. One, to get issues off the chest of the plaintiff. Second is to enlighten the mediator, because sometimes the mediator only receives position papers or knows very little about the case, sometimes sadly doesn’t know anything about the case, but to educate the mediator, and I find for our clients a lot of times, because if the client so chooses, we allow the client to speak if they so choose. Most the time they don’t want to because it can be kind of nerve-wracking, but it allows them to get things off their chest.

And then after that, generally the plaintiff or the injured persons or the persons bringing the claim goes first, and then the defendant will go. And the purpose of the defendant submitting a claim is to reveal what their position is from their standpoint, from their point of view, and oftentimes the opening statement by the plaintiff and the opening statement by the defendant can be emotional, as you can imagine. Many times the family of the loved one, they already feel guilty because they feel it’s their fault that they put their loved one in the nursing home that ended up severely injuring or killing their loved one. And then you have the nursing home attorney who’s in the position who says, “We acknowledge there’s been a death or a severe injury and we’re sorry about that, but we’re not at fault,” and that can be very contentious. Generally at trial, you’re separated, the parties are separated by several feet or an entire courtroom, and you don’t feel like it’s confrontational in that sense. In a mediation, you’re three feet away from the individual that may or may not have been responsible or liable for the death of your grandfather. So that process can be contentious, but it’s absolutely necessary for the parties to, I guess, feel out how the mediation is going to go.

After that, generally, the parties, all the people, the attorneys and the clients, anybody there will retreat to separate rooms. We call that caucusing – not caucusing like what they do in Iowa every four years where – I don’t know, yeah, Iowa, Iowa caucuses, New Hampshire primaries – anyways, it’s what’s called caucus where the parties are isolated from one another for the rest of the period unless the mediator so chooses to bring them back together. And the point of that is to allow the mediator from that point to go room to room to talk to the parties.

So generally how it works is by the time you’ve gotten to mediation, one party, the ball is in their court, so to speak. So for example, if a claim or a demand has been made on a nursing home for an injury, the demand is saying, “We’ll take $1 million to settle this claim.” The nursing home might have responded with, “We don’t think we’re liable. We’ll give zero.” Or maybe the nursing home responded by saying, “We’ll give you $200,000 to settle the claim.” So the ball in that instance would be in the court of the plaintiff making the demand because the offer was a million, the nursing home came back with zero of 200,000, whatever it is.

Generally, the mediator will start with the parties who need to make the next move. So many times, at least in our experience, we’re in mediation because the defendant, the nursing home, needs to make the move. So we’ve usually gone back and forth once, and we go to mediation and we have an offer on the table that they need to accept, so therefore the mediator will start with them. And the mediator –  we are not going to be privy to the conversation the mediator is having with the defendant at that point. And the mediator will talk to them about everything and they’ll come back to our room and say the defendants or the nursing home in this situation are going to offer this much. And then as you can imagine, it goes back and forth.

At that point, the job of the mediator becomes a facilitator of a settlement through the process of being, in my opinion, a psychiatrist, and being a counselor and being a therapist, because the settlement is generally going to be a great idea for both parties, because trials can sometimes be arbitrary in outcomes.

Smith: And like we have discussed in episodes past, one we did a couple weeks ago, they can be very, very long and time-consuming. I mean it’s not going to be something that’s going to be over in a year. It can take years.

Schenk: So the job of the mediator in being a psychiatrist, being a counselor, being a psychiatrist is to oftentimes talk sense into one of the parties, or both the parties, but sometimes an insurance adjustor can be hanging on a specific fact that makes no sense, and even though they’re being represented by a great attorney, that attorney cannot convince them otherwise.

Smith: The adjustor is the one with the pocketbook. She’s the one who has the checkbook.

Schenk: Correct. So the mediator’s job is going to say, “Listen. Listen to your attorney or see the facts as they really are. It’s a bad idea to hang on this. It’s a bad idea not to come down or come up on this amount of money you need to offer,” that kind of thing. The mediator acts as the kind of ray of light, the wisdom, brings the wisdom to the table that there’s somebody who can be believed, and that helps. And that’s for both sides as well. The job of the mediator is to make sure both sides leave with the settlement. So sometimes that goes on the back-and-forth. Sometimes we’ve had to walk out of mediations. Mostly we facilitate a mediated settlement.

Smith: And something that people – I understand the conspiratorial fear that a lot of our clients have. Who’s this mediator? Does he have our best interest in mind? He’s not in cahoots with the defense because they brought up his name? A mediator would not make a living if he were not well liked by both the plaintiff and defense bar. So it’s not like a judge where you’re going to say to yourself, “Oh no, I drew this judge and he’s really against plaintiffs or he’s really against defendants.” You are all both agreeing on the mediator because he or she has a reputation for fairness and understanding.

Schenk: That’s right. That’s right.

Smith: Because you don’t have to go with the mediator.

Schenk: So the mediator is going to sometimes not just be a messenger of numbers. The mediator is going to be someone who offers suggestions to either numbers or some type of resolution to the lawsuit. So they’ll come up with numbers or they’ll come up with ideas, “What if they changed this, this or this? Or what if they apologized?” – things of this nature, because they want to facilitate a settlement.

So oftentimes the mediator will succeed in that. So what happens in that instance is you have basically a binding contract. So for example, the nursing home is going to agree to pay $800,000 due to injuries that your loved one has suffered. So what happens is they’re paying $800,000 for a release, meaning that the plaintiff, your loved one who’s been injured, will not sue them for the same injury. So it’s basically $800,000 and we call this a day type of situation, and that is enforceable by a court of law.

So you do not have to worry about, if you’re considering mediation if your loved one has been injured in a nursing home, you don’t have to worry about a nursing home or insurance company not paying after you’ve settled at mediation, because it becomes a binding and enforceable contract at that point. If for some reason – we’ve never had this happen in however many years we’ve been doing this – an insurance company says, “We’re not going to pay,” but if they did, then you go to the court and say, “We mediated this settlement. They agreed to this.” Sometimes you call the mediator to testify and you get your money, and that’s how that works. So you don’t have to worry about, “They said this on this day. Tomorrow, they’ll take it back.” That’s not how it works. It’s enforceable against them and you.

Smith: And you know, if you’re thinking to yourself that you want to point out that if they refuse to pay and you have to go through the court system again, it’s going to take even longer. That’s just reality. But again, I have never heard of that happening and I’ve never had that happen. That’d be an extreme situation.

Schenk: Right. But at the same time, if the mediator is not able to bring the two parties together, you’re not obligated to accept a settlement that you do not want. You can always get up and leave a mediation if you so desire, even if it was obligated by the court. If your position is they’re not coming in good faith, you can get up and leave.

Smith: And that’s an interesting thing to bring up too is that – and this is another aspect of various states of their tort reform – in Florida, and understand I’m not barred in Florida and I’m not really up to date on how this has been shaking out, but it was the case in Florida and I think that it still is that before you could file suit in a nursing home case, you had to attempt mediation. And that was appealed to the 5^th Circuit – just to tell you how old this was – and they decided sort of in the favor of plaintiffs, but it was still a requirement that if you filed suit, you’d have to engage in some mediation. We luckily don’t have this here in Georgia. We tend to try to do mediation.

Schenk: And we have many judges, and if you draw the judge… In DeKalb, you have – if you file lawsuits and you get that judge, your standing order is you have to get a mediation. You have to do a mediation.

Smith: The problem with a statute like this one in Georgia – I mean like this one in Florida – is it was at one time a condition precedent to filing a lawsuit, which meant that before you filed a lawsuit, before you got discovery, before you had access to all the questions you wanted to ask this person or this facility, you had to mediate and you were essentially going into mediation blind, which is what we don’t like to do.

Schenk: That’s right. So there are – as we mentioned, there are several benefits to mediation The first benefit that we hinted at is the time factor. Mediation is a timeframe that you decide. Essentially it’s whenever you and the other parties and the mediator are able to meet in a room. There’s not two years of motions, practice and discovery. It’s basically, “Do you want to work this out? All right, this sounds good. When are you available?”

Smith: I would say you’re generally looking at – let’s say it’s January 1^st and you want to mediate a case. You’re generally looking at a three to four-month window to coordinate both attorneys and the insurance adjustor and especially the mediator, because if you’re picking somebody that’s really good, they’re going to be really busy. So if your mediator has every single day free from now until April, there’s probably a reason for that.

Schenk: That’s just a general amount of time. You could mediate something in a week if you wanted to.

Smith: Absolutely.

Schenk: As we said, it’s at the schedule availability of the parties involved. That’s how quickly it can move. And that’s how quickly it can be done. You can feasibly – this hasn’t happened in our experience – but you can feasibly do opening statements in the mediation, the first caucus and settle it within 10 minutes. Generally I find that ours get mediated towards the end of the business day.

Smith: Well I won’t say it almost always – in every single case for us, it has taken all day long.

Schenk: Yeah, it takes all day. And sometimes we leave mediation and it gets settled a week later just because. But anyways, that’s a benefit that you save a lot of time.

Another benefit is the cost factor. So in litigation, there are many, many costs that you might not think about or anticipate – for example, paying an expert $10,000 to provide his opinion or the $500 in filing fees or the thousands of dollars in deposition fees where you have to pay a court reporter to type transcripts up. With mediation, a case can cost – a medical malpractice case against a nursing home in a negligence case can be anywhere from $50,000 to $250,000 in expenses. With mediation, sometimes you can bring in, if you desire, if the mediator wants it or if it’s necessary, you can bring in experts to testify or to speak, and that costs money, but generally it’s just the parties. And if that’s the case, then what you’re paying for is only the mediator’s time, and mediators cost anywhere from a few hundred dollars an hour to a couple thousand dollars an hour depending on how good they are. And that fee is split between the parties generally. Sometimes you can negotiate that one side pays as part of the settlement. So cost – time, cost.

From the standpoint of the nursing home, an advantage is mediation is confidential, meaning that anything the nursing home says, anything that any party says is going to be confidential and not able to be used later on down the road against them. So while a deposition taken in a lawsuit is public record or could be public record, the proceedings of the mediation, what has been said in opening statements or direct caucus is never going to be public record. It’s going to be private.

Smith: And this is an issue that I have with mediation versus verdicts. I will always tell my clients that at the end of the day, for them, it is best to settle these cases if they get a fair settlement.

Schenk: Yeah, that’s a big if – if the settlement is fair.

Smith: Yeah, if it is, but it’s a problem for the public at large that so many of these nursing home cases are settled confidentially because the public never really finds out what happens. And even though the family may have complained to DCH as we talked about in a couple of episodes back, you know, the imposition of civil, monetary penalties is slight, it is toothless and Georgia is extremely backed up. We have an enormous backlog of complaints. So at the end of the day, this nursing home pays some money and never really gets in trouble. But you know, you got to do what you got to do, and the insurance company that insures this nursing home sure isn’t happy, and so that makes a difference as well.

Schenk: That’s right. So is it ideal that cases are settled confidentially? Probably not. But at the end of the day, the purse strings that is the insurance company are certainly keeping track of the money they’re doling out, and many times, that in itself is almost self-regulating. Not really, but that’s what we hope.

But anyways, speaking of nursing home self-regulation, a question that we often get as well is how do we seek out a nursing home that will be right for our loved one?

Smith: I get this question a lot, not just because I’m a nursing home attorney but having worked in these places, people are always asking me, “What do you think about this place? Have you ever heard of this place?” Because what I usually tell people is if I’ve never heard of it, that’s probably a good sign. But yeah, there are a lot of online resources that you can use to look at and compare nursing homes and assisted living facilities for your loved one.

Schenk: Yeah, and in terms of just a general standpoint of searching a place out, we’ve covered in previous podcasts that it’s really a multi-step process. Definitely you want to go investigate personally, put eyes on the facility. We talked about that, doing the sniff test, the smell test. But one thing you want to do, where you probably want to start is an online search. And there are many places online you can go and look in terms of selecting a place based on how it’s doing in terms of scoring, and one of those places is ElderCare.gov. ElderCare.gov has basically a locator, which is the Elder Care Locator is a public service to help older adults and caregivers connect to services including long-term care services and support, so you can go on that website and basically peruse the different facilities in your area. Or there’s a number – you can call 1-800-677-1116 for information.

Smith: I will say that I think that there are a lot of different websites. The best one to go to though is NursingHomeCompare.com, which is the official CMS website for nursing homes, which receive Medicare and Medicaid.

Schenk: Medicare.gov/NursingHomeCompare.

Smith: Yeah, /NursingHomeCompare. If you type in Google “Nursing Home Compare,” /NursingHomeCompare comes up. And it also has state agency reports on the nursing homes so you can look at those for the past three years, see what fines they’ve paid, see what reports were made, see what deficiencies were cited, and that’s extremely important as well.

Schenk: That’s right. Speaking of deficiency, we have…

Smith: …Deficient time to continue, but…

Schenk: It’s almost like we’re the Beastie Boys, like you’re finishing my rap lines, you know what I’m saying? So it’s kind of throwing me off a little bit. But you’re right. We have a deficient amount of time left for this podcast. We’ve come to the conclusion of the podcast. You can catch the podcast in multiple ways. You can watch it on our website at NursingHomeAbusePodcast.com.

Smith: You can download an audio or MP3

Schenk: I don’t know – it’s been a long morning for us here. But anyways, we appreciate that you’ve tuned in and new episodes are available every Monday. We hope to see you again soon. Until next time.

Smith: Until next time.

Thanks for tuning in to the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher, and feel free to leave us some feedback. And for more information about the topics discussed in this episode, check out the show website NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.