Mediating the Legal Malpractice Case – Part II – Picking the Right Mediator

Mediation Service Sacramento, CA

Now that you have determined mediating your legal malpractice case is appropriate, who is the right mediator for your case?  While some may disagree, a mediator with subject matter expertise is invaluable if you are serious about resolving your legal malpractice case.

          Subject matter expertise requires experience litigating legal malpractice cases and a basic understanding of the underlying matter giving rise to the legal malpractice case.  Granted, for those of us who have litigated legal malpractice cases, the nature of the underlying matter or transaction can vary from a simple personal injury case to a complex transactional matter.  Thus, knowing your mediator’s experience and understanding of the particular area of law giving rise to the malpractice case is essential to picking the right one for your legal malpractice case.

          Preliminarily, your mediator must understand the nuances of a legal malpractice case for the mediation be successful.  For instance, except in very limited circumstances, the foundation of a legal malpractice claim is predicated upon the attorney-client relationship and what the attorney agreed (or did not agree) to do for the client.  In other words, what duty does the attorney owe the client and was it breached?  This is determined by the applicable standard of care for attorneys handling the particular matter at issue and whether the attorney complied with this standard. 

          By the same token, causation is generally the most important, and hotly contested, issue in a legal malpractice case.  Causation is determined through the case-within-the-case analysis.  The fact that the client lost a case or was involved in a transaction handled by the attorney that went awry, does not mean the attorney committed malpractice.  In fact, the attorney’s conduct may very well have been below the applicable standard of care, but if it did not cause any loss or damage, then there is no malpractice.  This means the malpractice plaintiff must show that but-for the attorney’s error, he/she/it would have obtained a better result in the underlying matter or transaction. 

          Very closely tied to causation are damages claimed by the malpractice plaintiff.  As with any damages, they cannot be speculative, but knowing what is and is not recoverable in the malpractice action is extremely important.  If your mediator does not understand what is recoverable in the malpractice action, he or she cannot adequately assess settlement value of the case to begin with.  You should not have to educate your mediator during the mediation process in this regard.

          If your mediator does not have experience handling legal malpractice cases, he or she is probably not the right one for your case.  At MDR, we have the experience and knowledge needed to hit the ground running when you walk into our office.  Your time will be spent working towards resolution, not educating us about your case.

William A. Muñoz has spent more than 20 years defending legal malpractice cases giving him a wide range of experience and understanding in various areas of law.  He is a certified specialist in Legal Malpractice Law by the California State Bar Board of Legal Specialization and full-time mediator with Muñoz Dispute Resolution.  With his depth of knowledge and experience evaluating legal malpractice claims, Mr. Muñoz is ideally prepared to help you efficiently resolve your legal malpractice case.  Contact us today to schedule your mediation.

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