Legal Malpractice Ideally Handled in Pre-Suit Mediation

By Winter Wheeler, Mediator & Arbitrator


The legal profession likes to present the façade of unwavering perfection, which is why an accusation of malpractice can be particularly unsettling for the attorney at whom it is lodged. These allegations can make a lawyer feel like their reputation, credibility, intelligence, legal acumen and standing amongst peers and within the community are all on the line. Yet to the attorney struggling under the weight of the accusation, the stress is very real and can be very frightening. Due to these emotional considerations, legal malpractice claims are primed for pre-suit mediation.

The well-documented indications of “litigation stress” include hopelessness, fear and depression along with periods of poor and impulsive decision making. These symptoms can have serious and deleterious effects on a lawyer’s ability to perform their ongoing work and satisfy their day-to-day duties to their clients—all of which can lead to more mistakes and further malpractice.

This crippling stress inevitably invades the personal as well as the professional. Litigation in general—and legal malpractice litigation specifically—often places life in an ongoing state of limbo. This can make it nearly impossible to make short and long-term personal and career decisions. It can also be extremely damaging financially, especially since not all lawyers are required to carry malpractice insurance. As a result, they may have to face the daunting reality of massive out-of-pocket legal fees to defend against the claims—regardless of validity—for an indefinite period of time should the case be filed, proceed through discovery, and go to trial and a possible appeal.

Add to all this having to face family and friends while toiling under the weight of these burdens and the resulting damage to self-esteem and ability to function at a high level is unsurprising. Fortunately, pre-suit mediation can help avoid a lot of this trauma and serve multiple beneficial functions for all those involved.

The Confidential Nature of Mediation Preserves Privacy

For a lawyer eager to keep malpractice allegations private and to put their perceived shame behind them, pre-suit mediation can be a huge stress-reliever. The allegations will not become part of the public record because a formal complaint will never be filed with the court, while the discussions that occurred during the mediation will forever remain confidential.

Mediation Saves Invaluable Time and Money

Resolving a matter pre-suit often means that it can be disposed of in weeks or months instead of years. The lawyer can quickly put the matter to bed and fully return to the business of law without the weight of uncertainty caused by litigation. The truncated time period also translates to cost savings in terms of legal fees. Relative to litigation, the cost of a pre-suit mediation is nominal.

Pre-suit Mediation Allows for Informal Fact-Finding and Discovery

Pre-suit mediation is an opportunity to learn about the other side’s case before there is a legal obligation to engage in the discovery process. Voluntarily providing certain key information and evidence can get the participants to seriously discuss settlement or quickly decide to move forward with litigation. Either way, important time-saving progress will have been made.

Mediation is Cathartic and Can Preserve a Relationship

A mediation is a chance for a lawyer to give voice to the various life impacts associated with the allegations. It can also be a good format for apologizing and/or explaining themselves (if warranted or desired). The complaining party may also need to explain their point of view. If handled properly, this kind of emotional catharsis can diminish or resolve negative feelings while, if appropriate, potentially salvaging the relationship between the lawyer and the complaining party.

Finally, if you are an attorney with a client who is an emotionally overwhelmed lawyer facing malpractice allegations, strongly consider pre-suit mediation. By encouraging such a lawyer-client to pursue a mediation strategy, you help to restore control over their own life and to recoup their peace of mind. By working with a professional mediator, you can become your client’s strongest champion.



Winter Wheeler mediates complex disputes in areas of wrongful death, catastrophic injury, personal injury, premises liability, legal malpractice, medical malpractice, products liability, automotive and trucking liability.