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Quick Tip - Mediating a Claim? How to Avoid Legal Malpractice

Shutterstock_429855238 - mediation 2Due to the unpredictability as well as the high cost of litigation, more and more legal disputes are being resolved out of court, either through voluntary or court-ordered mediation.

To encourage the use of mediation, many states have passed mediation confidentiality statutes intended to protect the statements made during the process from use in subsequent proceedings. However, the increased rate of settlement reached through mediation raises legal malpractice issues regarding how courts should enforce mediation confidentiality statutes, not only in the case being mediated, but also in a subsequent legal malpractice action.

Admissibility of Statements Given at Mediation

In a recent decision, the California Supreme Court ruled that all things said or written by parties to mediation are inadmissible in any civil action. But the primary issue raised in the case is to what extent do mediation confidentiality statutes protect attorneys from associated malpractice claims? In states that have adopted the Uniform Mediation Act, statements made during mediation are confidential and cannot be used in court proceedings between the parties, but they are available for use to assert or defend against malpractice claims based upon actions that took place during the mediation.

Although the application of an individual state’s mediation rules may vary, attorney misconduct at mediation is an ethical violation as well as a potential legal malpractice claim. Allegations in these circumstances often claim that the attorney failed to properly prepare for the mediation, coerced the client into accepting an inadequate settlement, or the client was forced to settle the case in mediation for less than full value.

But regardless of the nature of the claim, best practices in defending such a legal malpractice claim is for the attorney to properly prepare not only himself, but also his client, for mediation, and effectively manage client expectations to focus on the realistic value of the claim.

If you’re concerned about legal malpractice as it might apply to mediation, contact USI Affinity today.


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