Professional malpractice occurs in different fields. The most significant are medical, legal, architectural, or accounting malpractice. From an evidentiary point of view, professional malpractice is most burdensome to prove in a court. They are called the case within a case for a reason.
Namely, in addition to proving an attorney or medical provider malpractice, a plaintiff must prove the merits of the underlying cause. That means litigating two cases simultaneously. A plaintiff must first demonstrate the negligence of an attorney, medical provider, architect, or accountant. After showing a lack of diligence in performing their professional duties, a plaintiff must prove that he would fare better without malpractice.
For example, a patient must prove that his health condition would have been better without a misdiagnosis. Or in the field of legal malpractice, a client must prove he would have succeeded had his attorney filed a motion on time.
Naturally, litigating two separate cases represents a substantial burden. A court trial in these cases is very costly and time-consuming. Therefore, turning to alternative dispute resolution methods is a wise decision.
Due to the overly complicated nature of professional malpractice claims, litigation is a tremendously expensive and lengthy procedure for resolving them. Contrarily, mediation is a highly effective and mutually beneficial method of settling professional malpractice disputes. Regardless of the complexity, mediation enables the parties to resolve their conflict in a few days.
The parties entrust their malpractice claims to a neutral third person. The mediator is usually a retired judge or another professional with expertise in various fields of professional malpractice, chosen voluntarily by signing the mediation agreement.
Mediation is a convenient method for resolving malpractice claims because of is its confidentiality. Professionals from all fields are interested in keeping malpractice claims against them out of public sight. That is why settling any dispute privately seems like a win-win situation. A plaintiff receives just compensations, while professionals continue their practice without undue publicity and a negative reputation that follows any malpractice claim.
The mediation occurs through a series of talks with each side separately. In private sessions, the mediator examines each side’s position and readiness to settle. After one or more private sessions, the disputed matter is discussed openly in joint sessions. Both parties with their attorneys participate in talks facilitated by the mediator. In case they settle, the parties sign a binding agreement.
Arbitration is much more similar to a traditional court trial due to the position of arbitrators who issue a decision after conducting the arbitration procedure. The arbitration decision is enforceable in the same manner as a court judgment.
Unlike court mediation, the parties cannot reject the arbitrators’ decision. The only exception is a non-binding arbitration. The arbitrator or panel of arbitrators are always former judges or attorneys. The legal basis for arbitration is an arbitration agreement, typically a clause in an existing contract with the medical provider or other professionals.
Although very similar to litigation, arbitration is less formal because there are no strict rules of evidence like in a court trial. The expenses of the discovery procedure are much lower thanks to its narrower scope. Also, depositions of expert witness testimonies are allowed in the hearing, unlike in litigation. The arbitrator can even resolve the dispute based on his sense of fairness, regardless of any procedure.
The neutrality, informality, and confidentiality of mediation and arbitration provide the parties with various benefits and enable them to get the financial reimbursement they claim, as well as to protect their business integrity at the same time..