How to proceed with settlement negotiation in medical malpractice arbitration?

Question

I am representing myself in arbitration for a medical malpractice case and recently received a report from a medical expert that supports my claim of negligence. Initially, there has been no communication or settlement offers from the opposing party. I have set a monetary figure for the settlement that includes considerations for punitive damages and loss of income. My settlement hearing is scheduled in a few months. Should I initiate settlement negotiations now, or would it be advantageous to wait until the hearing date approaches?

Eliza Jasinska · Answer

It is highly advisable to retain an experienced medical malpractice attorney before proceeding with settlement negotiations, especially in arbitration. Medical malpractice cases are complex, and negotiating without legal representation could put you at a significant disadvantage.

Joel Gary Selik · Answer

Before the conference, you can attempt settlement, but you must be careful not to start too high or end up too low before the conference. 
 
Also, you must have all your legal and factual allegations together. For example, punitive damages are very rare and you should make certain there is a valid claim for those.

Each case is very different and depends on so many factors. For example, who the defendants are, the extent and nature of the malpractice, the harm caused and future medical and other expenses as well as lost wages, and evaluations of the witnesses, defendants and Plaintiff.

James L. Arrasmith · Answer

Given your favorable expert report and the fact that you haven't heard anything from the opposing side, it might be wise to initiate negotiations sooner rather than later. By starting settlement discussions early, you create more room for dialogue, allowing both parties to carefully consider the evidence, evaluate risks, and come closer to an agreement. Early communication might also demonstrate your confidence in your claim and your willingness to resolve matters reasonably, potentially encouraging the opposing side to engage in good faith. 
 
However, there can also be benefits in waiting until closer to your arbitration date. As the hearing draws nearer, the opposing side may feel increased pressure to avoid the risks and costs of arbitration, potentially leading to more favorable terms for you. Waiting until closer to the arbitration date also means that you have additional time to strengthen your position or further substantiate your claims, which might enhance your negotiating power. 
 
A balanced approach would be to open informal dialogue now, expressing openness to settlement but holding firm on your desired figure initially. This approach signals your willingness to negotiate without undermining your leverage. Monitor how the opposing side responds—if they seem hesitant or unresponsive, you might then strategically hold off on formal negotiations until you're closer to the hearing, maximizing your advantage.

Q: How to proceed with settlement negotiation in medical malpractice arbitration?