By: Hon. Edward A. Jerejian, P.J.Ch. (Ret.)

As both a trial judge and now as a mediator, I have often reflected on the different roles those positions require. A judge is asked to decide legal rights. The court hears testimony, evaluates evidence, interprets statutes and contracts, applies precedent, and ultimately renders a decision. That process is essential to our system of justice, but by its very nature it is limited. Courts decide the issues presented by the parties. They cannot always repair the relationships that gave rise to the dispute.

The mediator occupies a different role. A mediator does not decide who wins or loses. Rather, the mediator assists the parties in evaluating risk, understanding one another’s interests, and exploring practical solutions that serve their long-term objectives. In many healthcare disputes, that distinction is particularly significant because the parties often remain connected professionally long after the litigation would otherwise have concluded.

One of the questions I am frequently asked is whether mediation demonstrates weakness. My answer is precisely the opposite. In my experience, mediation requires confidence, preparation, and a willingness to engage in thoughtful problem-solving. The strongest advocates are not those who simply argue their client’s legal position. They are those who understand their client’s business objectives, appreciate the strengths and weaknesses of the case, and recognize when a negotiated resolution better serves those objectives than years of expensive litigation.

That is especially true in healthcare. Physicians dedicate their professional lives to caring for patients. Hospitals exist to provide quality healthcare to the communities they serve. Insurance carriers seek to manage risk while ensuring that healthcare resources are responsibly allocated. Although their interests occasionally diverge, they ultimately share a common objective: the effective delivery of quality healthcare. Mediation creates an opportunity to refocus the discussion on those shared interests rather than allowing the dispute itself to become the defining issue.

Another lesson that has remained with me since leaving the bench is that successful mediations are built upon preparation long before the parties ever enter the conference room. Counsel who exchanges relevant information early, identify the true issues in dispute, educate their clients regarding litigation risks, and approach mediation with realistic expectations consistently achieve better results than those who treat mediation as merely another procedural step before trial.

Healthcare organizations can likewise reduce future disputes through thoughtful planning. Physician employment agreements should be reviewed periodically rather than remaining unchanged for decades while healthcare delivery evolves around them. Operating agreements governing physician practices should contain carefully considered provisions addressing retirement, disability, succession planning, valuation, governance, and dispute resolution. Hospitals should continue fostering transparent communication between administration and medical staff leadership. Early attention to these issues frequently prevents disagreements from becoming litigation.

The same is true for physicians themselves. Small disagreements left unresolved became larger disagreements. Communication diminished. Assumptions replaced conversations. By the time litigation commenced, positions had hardened to the point where the parties no longer believed resolution was possible. Mediation often succeeds because it restores communication before the relationship becomes irreparable.

Perhaps the greatest advantage mediation offers is flexibility. A judicial decision generally determines legal rights as they exist under the governing documents and applicable law. A mediated resolution, however, may include creative business solutions tailored to the specific needs of the parties. Those solutions may involve revised compensation arrangements, phased retirements, modified restrictive covenant provisions, consulting relationships, governance changes, succession plans, patient transition protocols, confidentiality agreements, or procedures for addressing future disagreements. Such practical resolutions are often far more valuable than a judgment entered after years of litigation.

Healthcare professionals understand better than anyone that successful outcomes frequently require collaboration. Physicians consult with specialists. Hospitals coordinate multidisciplinary care. Administrators, nurses, therapists, insurers, and physicians work together toward a common objective. Effective mediation reflects that same collaborative philosophy. It encourages participants to move beyond rigid legal positions and instead identify solutions that advance their mutual interests while respecting legitimate differences.

I have become increasingly convinced that mediation should not be viewed merely as an alternative to litigation. Particularly in healthcare, it should be viewed as an integral component of effective dispute resolution. When utilized early and thoughtfully, mediation reduces cost, shortens the time required to resolve disputes, preserves professional relationships, protects institutional stability, and minimizes unnecessary disruption to patient care.

This does not suggest that every case should settle or that every dispute is appropriate for mediation. Some matters require judicial determination to establish important legal principles or protect significant public interests. Others involve issues that simply cannot be resolved through negotiation. The point is not that mediation replaces litigation. Rather, it complements the judicial process by providing an additional avenue through which parties may reach practical and durable resolutions.

As our healthcare system continues to evolve, disputes involving physician employment, hospital governance, medical practice acquisitions, reimbursement, credentialing, technology, regulatory compliance, and succession planning will undoubtedly become more frequent and increasingly sophisticated. Lawyers, healthcare executives, physicians, and insurers will continue searching for methods of resolving those disputes efficiently while preserving the relationships necessary to provide quality patient care. I believe mediation will continue to play an increasingly important role in accomplishing those objectives.

After nearly twenty years on the Superior Court bench, including almost seven years as Presiding Judge of the Chancery Division, I came to appreciate that healthcare disputes were rarely just about contracts, bylaws, statutes, or regulations. They were about people. They involved physicians who had practiced together for decades, hospitals serving their communities, administrators balancing competing institutional responsibilities, and professionals whose reputations had been built over an entire career. Above all, they involved patients whose interests often extended far beyond the immediate legal controversy.

Since leaving the bench and serving as a mediator and arbitrator, those observations have only deepened. Litigation remains an essential component of our justice system and, in many cases, judicial intervention is indispensable. I have become convinced that healthcare disputes are among those most uniquely suited for mediation. Unlike many commercial disputes, healthcare litigation rarely ends when a judgment is entered. Physicians continue practicing. Hospitals continue serving their communities. Insurers continue managing risk. Attorneys continue advising healthcare providers. Relationships continue, and patient care continues. The challenge is finding a way to resolve disputes without unnecessarily damaging those relationships or disrupting the delivery of healthcare.

The complaint almost never identifies the real dispute. Pleadings describe causes of action. They allege breaches of contract, violations of fiduciary duties, interference with business relationships, or improper corporate conduct. Those allegations define the legal issues, but they rarely explain why the parties reached the courthouse. More often than not, the underlying dispute stems from broken communication, unmet expectations, changing economic realities, or the gradual erosion of trust among individuals who once worked together successfully.

That lesson has proven equally true in mediation. The legal issues establish the framework for negotiation, but lasting resolutions generally emerge only after the parties begin discussing the practical concerns that produced the litigation in the first place. Healthcare disputes are particularly well suited to that process because they affect far more than the litigants themselves. They influence patients, employees, referral sources, medical practices, hospital operations, insurers, and often the communities those institutions serve.

Physician Practices: Where Professional Relationships and Business Realities Intersect

Perhaps nowhere is this more apparent than in disputes involving physician practices. Physicians devote years, often decades, to building successful practices. They develop patient relationships, establish referral networks, mentor younger physicians, and create professional goodwill that becomes one of the practice’s most valuable assets. As practices mature, however, new challenges inevitably arise. Senior physicians begin contemplating retirement. Younger physicians assume leadership responsibilities. Compensation systems evolve. Governance issues emerge. Healthcare economics change dramatically. Operating agreements drafted years earlier frequently prove inadequate to address circumstances that no one anticipated when the practice was formed.

In Namerow v. PediatriCare Associates, LLC, 461 N.J. Super. 133, 218 A.3d 839 (Ch. Div. 2018), a published decision that I authored, reaffirmed New Jersey’s strong public policy favoring the enforcement of negotiated operating agreements governing closely held business entities. The dispute involved the retirement of a founding pediatrician after nearly forty years of practice and raised significant questions concerning the valuation of the physician’s ownership interest under the operating agreement. Like many physician practice disputes, the disagreement extended beyond the interpretation of contractual language. It reflected differing expectations concerning succession planning, the value of decades of professional contributions, and the future direction of the practice itself.

The court held that the retirement formula negotiated and adopted by the members was valid and enforceable, rejecting efforts to substitute a judicial determination of fair market value for the contractual formula. Emphasizing the freedom of sophisticated parties to define their own economic rights and obligations, the court concluded that, absent fraud, unconscionability, or other recognized equitable grounds for relief, courts should enforce the operating agreement according to its plain terms. The decision underscores that buyout provisions, including retirement and withdrawal formulas that may produce values different from appraised fair market value, will ordinarily be upheld where they reflect the parties’ bargained-for agreement.

After holding on summary judgment that the operating agreement unambiguously required use of its contractual net-worth valuation formula rather than a fair-market-value appraisal, the court conducted a bench trial limited to calculating the actual retirement purchase price. Both sides presented accounting experts concerning the proper application of the agreement’s formula, including the calculation of net worth, collectible accounts receivable, liabilities, and related adjustments.

The court carefully evaluated the competing expert testimony, accepted portions of each expert’s analysis where appropriate, and independently calculated the retirement purchase price in accordance with the methodology mandated by the operating agreement. Significantly, the court did not revisit whether a fair-market-value approach would have produced a higher valuation. Instead, it held that once the parties’ contractual valuation method had been determined, the court’s function was simply to apply that formula accurately. The decision demonstrates that New Jersey courts will not rewrite an operating agreement merely because a different valuation methodology would yield a larger payment to the retiring member; rather, the court will enforce the bargain the parties made and resolve only factual disputes concerning the mathematical application of the agreed-upon formula.

The broader lesson extends well beyond the facts of that individual case. Physician retirement is no longer simply a personal decision. It is a business event with significant legal and operational consequences. Questions concerning valuation methodologies, goodwill, deferred compensation, governance rights, patient transition, and succession planning increasingly become sources of disagreement as successful practices mature. While operating agreements establish important legal rights, they often cannot anticipate every circumstance surrounding retirement or changes in the economics of modern healthcare.

These disputes are particularly well suited for mediation because the parties generally share common long-term objectives. The retiring physician seeks fair recognition of years of professional contributions. The remaining physicians seek financial stability and continuity for the practice. Both sides share an interest in preserving patient relationships, protecting the reputation of the practice, and ensuring an orderly transition of care. Those shared interests frequently provide a foundation for negotiated solutions that no court could realistically fashion after trial.

Employment Agreements and Restrictive Covenants

The same principles apply to disputes arising from physician employment agreements and restrictive covenants. These matters frequently begin when a physician leaves an established practice to join another medical group or healthcare system. The departing physician understandably wishes to continue treating patients who have relied upon his or her care for years. The former practice seeks to protect the goodwill, referral relationships, and patient base it helped develop. Patients, meanwhile, simply wish to continue receiving care from the physician they have come to know and trust.

Restrictive covenants, particularly post-employment non-compete agreements in healthcare, are increasingly disfavored throughout the United States. Although the Federal Trade Commission’s nationwide rule banning most non-compete agreements never took effect and has since been abandoned following successful legal challenges, the FTC continues to scrutinize overly broad restrictive covenants through case-by-case antitrust enforcement. As a result, regulation has largely returned to the states, where the clear legislative trend has been toward limiting employee non-compete agreements in favor of worker mobility, competition, and patient access to care.

States taking the strongest position against non-compete agreements include California, Minnesota, North Dakota, and Oklahoma, all of which generally prohibit post-employment non-competes except in limited circumstances, such as the sale of a business. In addition, many states, including Illinois, Colorado, Washington, Massachusetts, Virginia, Oregon, and Rhode Island, have enacted significant statutory restrictions, frequently limiting enforcement to highly compensated employees or imposing strict notice, duration, and geographic requirements.

By contrast, several states continue to recognize and enforce reasonable restrictive covenants when they are narrowly tailored to protect legitimate business interests. States generally viewed as more favorable to enforcement include Florida, Texas, Georgia, Delaware, and, to a lesser extent, New Jersey, where courts continue to apply traditional reasonableness standards that balance the employer’s legitimate interests against the employee’s right to work and the public interest. Even in these jurisdictions, however, courts increasingly scrutinize overbroad restrictions and are less willing than in prior decades to enforce expansive non-compete provisions.

The law provides an analytical framework for resolving these disputes. For example, New Jersey courts have long recognized that restrictive covenants must balance the employer’s legitimate business interests against the hardship imposed upon the employee and the broader public interest. In the healthcare setting, that analysis necessarily includes consideration of patient access to medical care, as reflected in decisions such as Karlin v. Weinberg 77 N.J. 408, 390 A.2d 1161 (1978), and Solari Industries, Inc. v. Malady, 55 N.J. 571, 264 A.2d 53 (1970).

Yet while those cases establish important legal principles, they seldom provide complete practical solutions. Mediation frequently allows parties to negotiate modified geographic restrictions, reasonable transition periods, patient notification procedures, and other accommodations that protect legitimate business interests while minimizing disruption to patient care.

That distinction reflects another lesson from the bench. Litigation determines legal rights. Mediation allows parties to address business realities. Courts may enforce or decline to enforce contractual provisions, but they generally cannot redesign an employment relationship, preserve a referral network, develop a patient transition plan, or restore professional communication. Mediation offers that opportunity because it encourages parties to focus not only upon legal positions but also upon practical interests that will continue long after the litigation has ended.

The changing structure of healthcare delivery has only increased the importance of this approach. Independent physician practices increasingly affiliate with hospitals, merge into larger healthcare systems, or enter sophisticated contractual relationships involving productivity incentives, medical directorships, co-management agreements, and integrated delivery models. Agreements negotiated under one economic environment may produce unintended consequences as reimbursement systems, regulatory requirements, and operational demands evolve. Disputes that appear contractual on their face frequently reflect broader changes within the healthcare industry itself. Those realities require practical business solutions as much as legal analysis.

These observations have convinced me that healthcare mediation is not simply another form of alternative dispute resolution. Properly conducted, it is an opportunity to preserve professional relationships, protect institutional stability, reduce litigation costs, and ultimately serve the broader public interest by allowing physicians and healthcare organizations to return their attention where it belongs, providing quality care to their patients.

Hospital Privileges and Peer Review

If physician practice disputes illustrate the importance of mediation in preserving long-term business relationships, hospital privilege and peer review matters demonstrate the equally important role mediation can play in protecting both institutional integrity and professional reputation. Few disputes are more personal to a physician than those involving the ability to practice medicine. Hospital privileges represent not only an important professional credential but often the foundation of a physician’s livelihood and standing within the medical community.

Hospitals, however, bear an equally compelling responsibility. They must ensure quality patient care, maintain compliance with regulatory requirements, fulfill accreditation standards, and exercise independent judgment in credentialing and peer review. When questions arise regarding professional competence, clinical judgment, or adherence to hospital policies, hospital administrators and medical staff leaders are obligated to act in the interest of patient safety. Those responsibilities sometimes place physicians and hospitals on opposite sides of difficult and emotionally charged disputes.

New Jersey courts have long recognized both the importance of meaningful peer review and the need for fairness in credentialing decisions. Cases such as Nanavati v. Burdette Tomlin Memorial Hospital, 107 N.J. 240, 526 A.2d 697 (1987, illustrate the careful balance courts must maintain between protecting institutional discretion and ensuring that physicians receive procedural fairness. Yet even when the legal principles are clear, litigation often deepens divisions that may have begun as misunderstandings or disagreements over communication, process, or expectations.

Physicians involved in these disputes are concerned about far more than whether they ultimately prevail in court. They are concerned about their reputations among colleagues, their relationships with referring physicians, their ability to continue practicing in their communities, and the confidence of their patients. Hospital leadership, in turn, is focused on maintaining public confidence, supporting medical staff governance, and fulfilling its obligations to protect patient safety. Those are legitimate interests on both sides, and they frequently cannot be fully addressed through litigation alone.

Mediation provides a forum in which those broader interests can be acknowledged. Confidential discussions often permit parties to explore alternatives that would be unavailable in a courtroom, including corrective action plans, mentoring arrangements, educational requirements, revised committee responsibilities, voluntary resignations under mutually acceptable conditions, or carefully structured agreements that preserve both institutional integrity and professional dignity. While mediation is not appropriate in every credentialing matter, particularly where overriding patient safety concerns require immediate action, it can often resolve disputes before positions become irretrievably entrenched.

The same principles apply to disagreements involving physician leadership within hospitals and healthcare systems. Department chair appointments, Medical Executive Committee decisions, call coverage obligations, compensation arrangements, succession planning, and executive employment contracts frequently involve accomplished professionals with differing visions regarding the future direction of an institution. Although these disputes are often framed in contractual or corporate terms, they frequently reflect differing management philosophies, changing healthcare economics, or evolving institutional priorities. Mediation provides an opportunity to move beyond rigid legal positions and focus upon practical solutions that advance the long-term interests of both the institution and the professionals who serve it.

Healthcare Reimbursement Disputes

Healthcare reimbursement disputes present another area where mediation offers significant advantages. Physicians understandably focus upon delivering appropriate medical care and receiving fair compensation for the services they provide. Insurers, on the other hand, must administer complex reimbursement systems, evaluate medical necessity, apply contractual provisions, and manage financial risk across large populations of insureds. It is not uncommon for physicians and insurers to view precisely the same issue through entirely different professional lenses.

Consider a physician who performs a sophisticated procedure believing it is medically necessary and fully supported by accepted standards of care. Months later, reimbursement is denied or substantially reduced following utilization review. The physician perceives the denial as a challenge to professional judgment. The insurer views the decision as a faithful application of contractual coverage provisions and utilization guidelines. By the time litigation begins, both parties have become firmly convinced that their respective positions are entirely justified.

Mediation encourages a different conversation. Rather than debating only legal entitlement, the parties are often able to discuss medical reasoning, documentation, business concerns, future billing practices, and practical solutions that reduce the likelihood of similar disputes arising again. Even when complete agreement cannot be reached, narrowing the issues frequently saves substantial litigation expense while preserving ongoing professional relationships.

The evolution of modern healthcare has made these disputes increasingly complex. Hospitals continue acquiring physician practices. Independent practices merge into larger organizations. Physicians enter integrated delivery systems, accountable care organizations, and joint ventures that would have been uncommon only a generation ago. These evolving business relationships create sophisticated contractual arrangements concerning productivity compensation, quality incentives, governance, shared services, technology, electronic medical records, and regulatory compliance. As healthcare economics continue changing, disagreements regarding the interpretation and application of those agreements become increasingly inevitable.

One of the recurring lessons I observed on the bench was that business documents, no matter how carefully drafted, cannot anticipate every future circumstance. Contracts are written at a particular moment in time. Healthcare, however, evolves continuously. Reimbursement models change. Regulatory requirements expand. Technology advances. Demographic needs shift. Relationships that functioned well under one set of assumptions may become strained under another. When that occurs, litigation frequently focuses on the language of the agreement, while mediation allows the parties to examine whether the agreement still accomplishes the objectives they originally intended.

Throughout both my judicial career and my work as a mediator, several observations have remained remarkably consistent.

First, the complaint is rarely the real dispute. Pleadings identify legal claims, but they seldom explain why formerly successful professional relationships deteriorated. More often than not, the litigation reflects years of accumulated misunderstandings, changing expectations, communication failures, or evolving business realities.

Second, timing matters. early mediation almost always produces better outcomes than mediation conducted after years of expensive litigation. As attorney’s fees increase, positions harden, relationships deteriorate, and settlement becomes progressively more difficult. Early intervention preserves flexibility and creates opportunities for practical solutions before litigation begins to define the parties’ relationship.

Third, preparation determines success. Effective mediation requires more than simply bringing parties together. It requires thoughtful preparation, early exchange of relevant information, realistic evaluation of litigation risks, and participation by individuals possessing both settlement authority and a genuine commitment to solving the problem rather than merely defending a position.

Fourth, successful settlements look forward rather than backward. The most durable agreements address not only the immediate dispute but also future relationships, patient transitions, confidentiality, non-disparagement, governance, compensation, and mechanisms for resolving future disagreements. The objective is not merely ending litigation. It is preventing the next lawsuit.

Finally, mediation succeeds because it recognizes that healthcare disputes involve continuing relationships. Physicians continue practicing medicine. Hospitals continue serving their communities. Insurers continue managing risk. Patients continue requiring care. Unlike many commercial disputes where parties simply separate and move on, healthcare professionals frequently remain part of the same professional community for years or even decades.

Medical Malpractice Litigation, Nuclear Verdicts, and the Expanding Role of Mediation

Across the country, medical malpractice verdicts have continued to increase in both frequency and size, particularly in cases involving catastrophic birth injuries, delayed cancer diagnoses, and permanent neurological injuries. In recent years, several jurisdictions, including Pennsylvania, New York, Georgia, Connecticut, Michigan, and Illinois, have produced verdicts well into the tens or even hundreds of millions of dollars. Philadelphia, in particular, has become known for exceptionally large medical malpractice awards, including a recent verdict exceeding $108 million in a birth injury case and another substantial verdict arising from an unnecessary hysterectomy following an alleged cancer misdiagnosis. These cases illustrate the extraordinary financial exposure facing hospitals, physicians, insurers, and healthcare systems when catastrophic injuries are alleged.

These verdicts should not simply be viewed as isolated trial outcomes. They reflect broader trends in healthcare litigation. Modern juries are increasingly presented with sophisticated life-care plans, detailed economic projections, and compelling evidence of lifelong medical needs. In catastrophic injury cases, much of the verdict often represents projected future medical care rather than traditional pain-and-suffering damages. Nevertheless, the possibility of an extraordinarily large verdict creates substantial uncertainty for all participants in the healthcare system.

From the perspective of a mediator, the question should not simply be how to defend malpractice cases more effectively. Rather, it should be how to identify and resolve appropriate cases earlier, before litigation costs escalate and positions become entrenched. Early mediation provides an opportunity to accomplish precisely that objective.

Medical malpractice litigation is uniquely suited for carefully managed mediation because the issues often extend beyond liability alone. Patients and families frequently seek answers, accountability, and assurance that similar events will not recur. Physicians generally seek to explain the medical judgment exercised under difficult circumstances while protecting their professional reputations. Hospitals are concerned not only with financial exposure but also with patient safety, institutional integrity, regulatory obligations, and public confidence. Mediation provides a confidential setting in which those broader interests may be explored in ways that a courtroom simply cannot accommodate.

Equally important is the timing of mediation. Cases referred early, after sufficient medical records have been exchanged and expert evaluations have begun, but before years of expensive discovery, often present the greatest opportunity for meaningful resolution. By contrast, once multiple experts have been retained, extensive depositions completed, and substantial litigation costs incurred, settlement frequently becomes more difficult regardless of the underlying merits.

Healthcare institutions can also reduce malpractice exposure through proactive risk management. Careful documentation, effective communication among providers, prompt disclosure and investigation of adverse events, standardized clinical protocols, and ongoing peer review all reduce both patient harm and subsequent litigation. Many disputes arise not solely from the underlying medical outcome but from communication failures that follow an unexpected complication.

Another consideration deserving thoughtful discussion is whether certain complex malpractice cases may, under appropriate circumstances and where permitted by law and agreed upon by the parties, be suitable for bench trials rather than jury trials. Judges routinely evaluate complicated scientific, financial, and technical evidence in commercial, chancery, and other specialized litigation. In particularly complex medical negligence cases involving highly technical issues, some litigants may conclude that a bench trial provides greater predictability and allows the court to focus carefully upon competing expert testimony without many of the variables inherent in jury deliberations. Although jury trials remain the constitutional norm in medical malpractice litigation, the possibility of a voluntary bench trial may deserve greater consideration in selected cases as one additional means of managing litigation risk.

Ultimately, neither mediation nor bench trials should be viewed as substitutes for the civil jury system. Jury trials remain indispensable in resolving disputed facts and enforcing legal rights. Rather, these processes should be viewed as complementary tools. Effective mediation can substantially reduce litigation costs, narrow issues for trial, preserve professional relationships where appropriate, and eliminate the uncertainty associated with extraordinarily large verdicts. Likewise, thoughtful consideration of alternative dispute resolution mechanisms allows physicians, hospitals, insurers, and patients to devote greater attention to what remains the central objective of healthcare: providing safe, effective, and compassionate patient care.

Reducing Malpractice Risk Before the Lawsuit Begins

Perhaps the most effective way to manage medical malpractice risk is to prevent disputes from developing into litigation in the first instance. Throughout my years on the bench, I frequently observed that many malpractice cases were driven not only by the underlying medical event but also by what occurred afterward. Patients and families often become frustrated when communication ceases, questions go unanswered, or they perceive that no one is willing to explain what happened. While not every adverse medical outcome results from negligence, every unexpected outcome deserves thoughtful communication and careful attention.

Healthcare organizations should therefore view risk management as an ongoing process rather than simply a response to litigation. Comprehensive documentation remains the cornerstone of any effective defense. Medical records should accurately reflect the physician’s clinical reasoning, informed consent discussions, treatment alternatives considered, consultations obtained, and the patient’s condition throughout the course of care. Well-prepared records frequently become the most persuasive evidence available years later when memories have faded.

Equally important is maintaining open and timely communication with patients and their families following unexpected complications. Numerous studies have suggested that patients are less likely to pursue litigation when physicians communicate honestly, compassionately, and promptly regarding adverse outcomes. In jurisdictions where disclosure-and-apology programs are authorized, healthcare providers should become familiar with those protections and consider whether such programs may help preserve trust while reducing unnecessary litigation.

Hospitals should also continue investing in robust peer review, quality assurance initiatives, morbidity and mortality conferences, and root-cause analyses following significant adverse events. These internal processes not only improve patient safety but also identify systemic issues before they lead to repeated injuries and additional claims. Likewise, periodic review of informed consent procedures, patient communication protocols, electronic medical record documentation practices, and interdisciplinary communication among physicians, nurses, and other healthcare professionals can substantially reduce avoidable misunderstandings.

Early case assessment is another valuable tool. When a significant adverse event occurs, hospitals, insurers, and defense counsel should promptly evaluate the medical facts, consult appropriate experts where necessary, assess potential liability and damages, and determine whether early mediation may be appropriate. Resolving meritorious claims at an early stage often reduces litigation expense, minimizes uncertainty, and allows both patients and healthcare providers to move forward without years of contentious litigation. Conversely, where the medical care complied with the applicable standard of care, early evaluation enables counsel to develop a focused litigation strategy supported by a complete understanding of the medical issues.

From a judicial perspective, early mediation should not be viewed as a sign of weakness or an admission of liability. Rather, it reflects sound case management. Mediation provides an opportunity to evaluate risks realistically, narrow disputed issues, exchange information efficiently, and explore creative solutions before substantial litigation costs have been incurred. Even where settlement is not immediately achieved, the mediation process frequently clarifies the strengths and weaknesses of the respective positions, promotes more productive negotiations, and often lays the groundwork for eventual resolution.

Ultimately, effective malpractice risk management begins long before the filing of a complaint. It requires thoughtful communication, careful documentation, proactive institutional review, early evaluation of adverse events, and a willingness to consider mediation before litigation positions harden. These preventive measures not only reduce legal exposure but also advance the broader goal shared by every participant in the healthcare system: improving patient safety while preserving confidence in the delivery of quality medical care.

While our civil justice system plays an indispensable role in resolving legitimate disputes and protecting the rights of injured patients, litigation should not be viewed as the inevitable response to every adverse medical outcome. Thoughtful communication, careful documentation, proactive risk management, meaningful peer review, and early evaluation of potential claims frequently prevent misunderstandings from evolving into years of costly litigation.

When disputes cannot be avoided, early mediation offers physicians, hospitals, insurers, and patients an opportunity to engage in candid discussions before positions become entrenched and litigation expenses escalate. Even when a case does not settle immediately, the mediation process often narrows the issues, improves communication, promotes realistic evaluation of risk, and establishes the foundation for eventual resolution.

Healthcare presents unique challenges because the relationships do not end when the lawsuit is filed. Physicians continue treating patients. Hospitals continue serving their communities. Healthcare professionals continue working together. The objective, therefore, should not simply be winning cases, but preserving confidence in our healthcare institutions while ensuring that patients receive safe, effective, and compassionate care.

Ultimately, that may be the most enduring lesson from both the bench and the mediation table. Litigation determines legal rights. Mediation resolves practical problems. Risk management seeks to prevent disputes before they arise. When those three principles work together, the result is not only more efficient dispute resolution, but a stronger healthcare system that benefits physicians, hospitals, insurers, and, most importantly, the patients they serve.

Private Equity and Healthcare Consolidation: Emerging Trends and Future Direction

Private equity has become one of the most significant forces reshaping healthcare delivery. Over the past decade, private equity firms have invested heavily in physician practices, ambulatory surgery centers, dental and ophthalmology groups, dermatology, gastroenterology, orthopedic practices, behavioral health, and other specialty providers. Through platform acquisitions and subsequent “roll-up” strategies, investors seek to achieve economies of scale, centralize administrative functions, improve negotiating leverage with payors, and increase operational efficiency. Hospitals and health systems likewise continue to acquire independent physician practices to expand integrated delivery networks, strengthen referral relationships, and position themselves for value-based reimbursement models. While these transactions can provide physicians with capital, administrative support, and succession planning opportunities, they have also raised concerns regarding physician autonomy, increased healthcare costs, market consolidation, and the potential effect on quality of patient care.

Looking ahead, consolidation is expected to continue, although under heightened regulatory scrutiny. Both the federal government and numerous state attorneys general have intensified review of healthcare mergers, physician practice acquisitions, and private equity transactions based on concerns over competition, pricing, and patient access. Future transactions are likely to involve greater regulatory oversight, more sophisticated governance structures preserving clinical independence, and increased emphasis on value-based care, quality metrics, and compliance. For healthcare providers, executives, attorneys, and mediators, understanding these evolving trends will be increasingly important in structuring transactions, resolving disputes, and navigating the rapidly changing healthcare marketplace.

Conclusion

One of the greatest satisfactions I have experienced since leaving the bench has been helping parties discover solutions that no court could ever order. A mediator cannot compel settlement, nor should one attempt to do so. The mediator’s responsibility is to foster communication, encourage realistic assessment of risk, identify shared interests, and help parties craft practical solutions that meet their own objectives. When that process succeeds, the resulting agreement often accomplishes far more than any judicial decision could have achieved.

After nearly twenty years on the bench and now several years serving as a mediator and arbitrator, I have become convinced that mediation occupies a particularly important place within healthcare dispute resolution. Litigation will always remain necessary to resolve significant legal questions and protect important rights. Yet many healthcare disputes involve far more than legal principles. They involve professional relationships, institutional responsibilities, business realities, and the shared commitment of physicians, hospitals, insurers, and counsel to delivering quality patient care.

That, perhaps, is the most enduring lesson I have taken from both the bench and the mediation table. Courts resolve legal controversies. Mediation helps people resolve problems. In healthcare, where professional relationships and patient care are so closely intertwined, resolving the problem often proves every bit as important as deciding the case.

If there is one enduring lesson I carried with me from the courtroom to the mediation table, it is this: litigation determines legal rights; mediation addresses human interests. One process asks who prevails under the law. The other asks how the parties can move forward.

Throughout my judicial career, I watched talented physicians, respected hospital administrators, accomplished lawyers, and successful business professionals devote enormous amounts of time, energy, and resources to disputes that ultimately could have been resolved more constructively through earlier communication and thoughtful negotiation. Many left the courtroom with a legal victory but without restoring the professional relationships that had been damaged along the way.

The most successful mediations remind us that resolution is not measured solely by whether someone wins or loses. Success is measured by whether physicians return their attention to caring for patients, hospitals continue fulfilling their missions, insurers manage risk responsibly, and healthcare institutions remain focused on serving their communities.

Those objectives extend beyond the interests of any individual litigant. They serve the public interest itself.

For that reason, I have come to believe that mediation is not simply another method of resolving healthcare disputes. Properly used, it is one of the most valuable tools available for preserving professional relationships, protecting institutional integrity, reducing unnecessary litigation, and ensuring that the delivery of healthcare remains the central focus rather than the conflict itself.

About the Author 

Hon. Edward A. Jerejian, P.J.Ch. (Ret.), Chair of the Alternative Dispute Resolution practice at Cleary Giacobbe Alfieri Jacobs, LLC,