ADR Systems’ senior mediators and arbitrators are so effective at settling medical malpractice, wrongful death and auto liability disputes that they appear in almost every edition of our monthly Personal Injury Settlement Reports. Our neutrals’ skill at settling these cases is rooted in their legal acumen and ability to facilitate constructive negotiations between the parties about the strengths and weaknesses of their cases, how settlements can creatively serve both sides’ goals and the risks of litigation for everyone.

Medical Malpractice Mediations

Counsel frequently frame medical malpractice claims around an alleged failure that caused the plaintiff’s injuries: a failure to properly diagnose a patient, a failure to treat them in an appropriate and timely manner, a failure to rule out alternative medical explanations and a failure to use proper surgical techniques.

But upon review of the submissions, our neutrals frequently see that this “failure” is not as obvious as the plaintiff thinks it is nor as doubtful as the defendant thinks it is for two reasons:

• First, the scope of a duty of care is not always clear. The Restatement (Third) of Torts, Medical Malpractice § 5 (A.L.I. 2024) defines a medical provider’s duty of care as the “the care, skill, and knowledge regarded as competent among similar medical providers in the same or similar circumstances.” But this is also nuanced by a patient’s medical condition and characteristics, resources available, treatment options available and any representations the provider made about their skill, knowledge, and experience.
• Second, the parties may be fixated on overestimations and underestimations: overestimations of their case’s value and strengths and underestimations of the other side’s arguments, the risks in their positions and the impact that their emotions have on the process.

Thus, our neutrals go to great effort to help counsel and their clients appreciate the strengths and weaknesses of their positions, those of the other sides, and the honest ambiguities in the facts. “Reasonable jurors may come to different conclusions at trial,” said Hon. Kay M. Hanlon, (Ret.), senior mediator and arbitrator at ADR Systems. “That is a serious risk that parties must weigh.”

Wrongful Death Mediations

Wrongful death mediations raise issues of professional negligence, potential duties of public actors[1], proximate causation[2] and even strict liability.[3] Thus, they often involve plaintiffs and defendants in the construction, railroad, and healthcare industries as well as the public sector. But what they all have in common is this: The individual that was originally harmed is no longer with us.

“Creativity and flexibility are extremely helpful in wrongful death mediations,” said Hon. Janet Adams Brosnahan, (Ret.), senior mediator and arbitrator at ADR Systems. “They signal a good-faith willingness to reach an accord despite all the challenges of coming to an agreement,” said Judge Brosnahan. “The parties’ meritorious legal arguments are not discounted, but a spirit of respect and compromise prevails over competing perspectives, allowing the litigation to end.”

To settle these cases, neutrals at ADR Systems often home in the core desires of the parties and look for ways that a settlement can satisfy both. Plaintiffs often desire a settlement that secures their needs, compensates them, and stabilizes their lives amid a tragic loss. Defendants desire to minimize exposure and expense, thinking they should pay no more and no less than what is necessary. Our neutrals often remind both sides that finding the right number is not a game of either/or but both/and; money can serve multiple goals at once. For example, a number can become more reasonable if the parties can agree to structured payments overtime, minimizing upfront costs to the defendant and providing the plaintiff with a guaranteed pattern of income. Parties can even apportion some of the settlement to a charitable donation or the creation of a trust for future educational expenses, for example.

Auto Liability Mediations

Auto liability disputes are often classic negligence cases. Drivers assume duties of care to protect foreseeable victims from foreseeable harms.[4] If a driver’s loose bumper falls off their car, causing an accident on a highway, that creates a cause of action for negligence.

But our neutrals also settle auto liability cases that implicate agency law and Respondeat Superior. Frequently, the drivers in these suits operate commercial vehicles like semi-trailers and semi-trailer tractors. Under tort law, generally, employers are strictly liable for the torts of employees or agents acting within the scope of their employment — and even if the employee or agent unilaterally disregarded employer instructions and violated the law while working.[5]

Thus, auto liability mediations often address and debate important dispositive questions like: Was the driver acting within the scope of their employment?[6] Are they a W-2 employee or a 1099 independent contractor? Were they acting with apparent authority?[7] Was the driver engaging in a course of conduct subject to the employer’s control?[8]

But our neutrals also emphasize the risks posed by Illinois’ modified comparative negligence statute, 735 ILCS 5/2-1116, and its joint and several liability statute, 735 ILCS 5/2-1117:

• Under Illinois’ modified comparative negligence rule, a plaintiff will be barred from recovering damages if the trier of fact determines that they are more than fifty percent at fault for their injuries in a negligence action. Where they are found to be less than fifty percent at fault, their damages will be reduced in proportion to the amount of fault assigned to them.
• And under Illinois’ joint and several liability statute, generally, all defendants found liable for negligence “are jointly and severally liable for plaintiff’s past and future medical and medically related expenses.” This means that the plaintiff can seek to recover the total amount of medical damages from any of the jointly and severally liable parties. Any defendant whose fault is 25% or greater shall be jointly and severally liable for all other damages, but if their fault is less than twenty-five percent, they shall only be severally liable for those other damages.

“At the heart of almost every mediation is risk mitigation: said Hon. Joseph N. Casciato, (Ret.), senior mediator and arbitrator at ADR Systems. “I always remind the parties that trial poses numerous unknowns; juries often do things that even experienced judges and attorneys don’t expect. Mediators help parties mitigate risk by establishing rapport with even the most difficult parties and promoting constructive communication. This rapport with the parties is what settles cases most often.”

Mediate Your Medical Malpractice, Wrongful Death & Auto Liability Disputes at ADR Systems Now

Medical malpractice, wrongful death, and auto liability disputes raise numerous legal issues that are fundamental to tort law. Our neutrals navigate each and guide parties toward settlement by encouraging them to more deeply consider the strengths and weaknesses of every argument, think creatively about how to allocate settlement funds, and weigh the risks of recovery — or the lack thereof — imposed by comparative negligence and joint and several liability.

Our neutrals’ firm comprehension of these cases makes them highly effective at settling them — so much so that they have comprised the supermajority of all cases featured in our monthly Personal Injury Settlement Report since its relaunch last year. They know how these cases work and what has settled them in the past. Parties can trust them to do the same again.

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Hon. Janet Adams Brosnahan, (Ret.) served over 21 years in the Circuit Court of Cook County. She has expertise in settling a variety of disputes, particularly those relating to medical negligence, toxic tort and product liability issues. Judge Brosnahan also has extensive experience in labor, employment and contract matters. Her warmth and in-depth knowledge make her a well-respected and sought-after neutral.

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Hon. Joseph N. Casciato, (Ret.) has trademarked his ability to guide even the most recalcitrant parties to settlement in his career with ADR Systems. Judge Casciato followed his 10-year legal career with a 22-year judicial career, which included working in the Circuit Court of Cook County Law Division and Law Jury. As a mediator and arbitrator with ADR Systems, Judge Casciato combines knowledge and efficiency with his energy and enthusiasm to keep parties engaged throughout the resolution process.

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Hon. Kay M. Hanlon, (Ret.) has expertise in resolving personal injury actions such as medical malpractice, mass torts and product liability, as well as commercial actions such as legal malpractice, eminent domain and subrogation. As a jurist and neutral, Judge Hanlon is always prepared and ready to listen attentively. Her open and friendly demeanor is known throughout the legal community. Her personality is tailor-made for her work as a mediator and arbitrator.

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[1] E.g. Riss v. New York, 22 N.Y.2d 579 (N.Y. 1968).

[2] Restatement (Third) of Torts, §34, cmt. b.

[3] Restatement (Third) of Torts, § 20.

[4] Restatement (Third) of Torts, § 7.

[5] Restatement (Third) of Agency, § 7.01, cmt. c.

[6] Restatement (Third) of Agency, § 2.04.

[7] Restatement (Third) of Agency, § 7.03(2)(b).

[8] Restatement (Third) of Agency, § 7.07(2).