The July/August issue of Law Practice magazine (Volume 36, Number 4) ran an article entitled “Are You At Risk?  The Biggest Malpractice Claims Risks and How to Avoid Them,” showing the most common types of malpractice claims in both Canada and the United States.  Among these, the ten top-ranking malpractice claims related to the practice of law in the United States are as follows:

1. Failure to Know/Apply Law                          11.3% of U.S.  malpractice claims
2. Planning Error                                                    8.9% of U.S.  malpractice claims
3. Inadequate Discovery/Investigation       8.8% of U.S.  malpractice claims
4. Failure to File Documents                             8.6% of U.S.  malpractice claims
5. Failure to Calendar                                          6.7% of U.S.  malpractice claims
6. Failure to Know Deadline                             6.6% of U.S.  malpractice claims
7. Procrastination                                                 5.9% of U.S.  malpractice claims
8. Failure to Obtain Client Consent                                5.4% of U.S.  malpractice claims
9. Conflict of Interest                                          5.3% of U.S.  malpractice claims
10. Fraud                                                                    5.0% of U.S.  malpractice claims

Despite the prevalence of these top ten malpractice claims, professional malpractice mediation has been shown to have a significant effect on reducing costs related to professional malpractice lawsuits.  Additionally, mediating these types of disputes helps to lower the reputational costs of a law practice associated with litigation in these areas.  This means that in addition to saving time and money by mediating the claim rather than litigating it, attorneys can also save the reputation of their practice by mediating such claims.

The reason for this is that mediation is a confidential process, as opposed to the very public process of going to court and going through the process of litigation.  When a case is mediated, the specifics (and even the claim, itself) is kept between the parties involved in the dispute and the mediator, who remains a neutral, third-party facilitator to the process of working out a satisfactory resolution and remedy to the conflict.

Since real estate buying and selling involves a lot of moving parts and parties who have a vested interest in the outcome, disputes often arise between and among stakeholders of real estate transactions.  In such, real estate mediation provides a low-cost, highly effective alternative dispute resolution process that can be used to avoid litigation while saving valuable time, money and reputation.

Real estate agents are accustomed to the process of negotiation.  However, many fail to see the value of that same process when involved in a dispute with a present or past client, or any other party involved in a real estate transaction.  Negotiation through real estate mediation is an effective tool to resolve any dispute that might arise before, during or after a real estate transaction has occurred.

In real estate mediation, a neutral, third-party mediator hears all sides involved in a dispute in an informal meeting known as a mediation hearing.  In this hearing, the mediator uses his or her knowledge of the law related to real estate and property transactions to assist the parties in reaching a negotiated settlement that resolves the dispute.

In transactions related to real estate, disputes can arise concerning:

• Contractual language
• Misrepresentations by the seller
• Willful breach of contract
• Lease disputes
• Boundary, easement or encroachment disputes
• Failure to disclose environmental contamination
• Land use and zoning disputes
• Title or deed disputes
• Mechanics liens and construction disputes

Resolving these disputes through litigation not only costs significant time and money for both sides involved—it also destroys the reputation of a realtor, contractor or business, and becomes a matter of public record for anyone and everyone to see.  Mediation, on the other hand, is a quick, legal remedy that is completely confidential, allowing resolution of the dispute to be reached under the disputants’ own terms and control.

There are many root causes of racial conflict, and despite the advances made in our country, we still have a long way to go to fix the problem of racial discrimination.  Everyone is affected, whether directly or indirectly, and the issue is widespread in employment hiring, firing and disciplinary procedures.  For this reason, discrimination mediation is an option for alternative conflict resolution that uses the assistance of an impartial, third-party mediator.

Discrimination mediation has been used in a wide range of situations to resolve conflict that could otherwise lead to litigation.  Mediation has shown to be a successful form of conflict resolution for a wide range of discrimination-related disputes due to its ability to assist with communication and bias—factors that are often at the core of discriminatory sentiments and assumptions.

While mediation has been highly successful in a large number of discrimination disputes, it is not a “one size fits all” method of resolution.  Some situations are better suited for other legal remedies, especially those involving sexual harassment and /or situations in which one party feels threatened or intimidated by the other.  When these elements are present, arbitration or litigation might be the best course of action—particularly if the vulnerable party suffers anxiety in being in the same room as the alleged perpetrator.

In most other discrimination-related disputes, however, mediation can be an inexpensive and effective way to reach a resolution quickly.  This is because discrimination mediation:

• Assists the parties in identifying the real issues at hand;

• Provides both disputants with the opportunity to retract comments, clarify misunderstandings or misperceptions, and apologize for any damage their actions might have caused;

• Provides both parties with a clear understanding of the emotional and financial toll of their dispute;

• Often leads to significant behavioral changes;

• Often produces more positive, productive working relationships; and

• Assists in the resolution of conflicts that can destroy businesses, undermine productivity and ruin reputations.

When a product is defective or potentially hazardous to the consumer who purchased it, product liability mediation can be an effective way to resolve the problem.  Product liability mediation is a form of alternative dispute resolution that avoids going to court and dealing with extensive attorney fees.  Since being injured by a defective product can entitle the consumer to monetary damages, product liability mediation is often a preferred way to handle the dispute and receive compensation without dealing with the expense (both in time and money) of litigation.

In product liability mediation and cases involving product liability claims, most fall under one or several of the following categories:

A claim involving a design defect.  When a product breaks or damages more easily than it should, the problem could be related to a design defect.  These types of claims are especially successful when brought to mediation, particularly if the product’s design defect put the consumer at risk for being seriously hurt.

A claim involving a manufacturing defect.  If a product is made and distributed with known defects, the manufacturer could be responsible.  Manufacturers should test their products thoroughly before distributing them; otherwise, consumers could be at risk when using the defective products.

A claim involving an inadequate warning / no warning label.  If a product is potentially harmful, there should be a label on it warning consumers about the harm that could result if the product is used incorrectly.  Without this label, a manufacturer could be held liable for any injury that occurs when or if the consumer uses the product incorrectly and is injured as a result.

For either one of these claims, product liability mediation is a quick and easy method to reach a resolution and seek monetary damages for injuries that are the direct result of a manufacturer’s carelessness or lack of foresight.

Living in a condominium requires an ability to be interdependent—at least, living happily in one does. Getting along with neighbors who share common spaces, obeying house rules, and keeping board members happy are essential skills for anyone who wishes their experience living in a condominium unit to be a pleasant one.

In order to keep the peace and keep all owners happy, condominium boards create house rules that all owners must follow. The regulations that keep everyone living peaceably are there for a reason, but disputes will arise inevitably from them, especially if the wording is vague or if owners aren’t fully aware of the details.

However, since most owners understand the need to enforce house rules, the dispute is often in how those rules are enforced—not whether the rules should exist in the first place. Still, an owner might take enforcement personally, or become hostile when faced with consequences for breaking regulations. In other situations, the wording of the rules might be vague and some owners might be given preferential treatment over others, causing dispute against the board to arise that are justified.

Regardless of how disputes happen, there is little doubt that resolving them quickly is in everyone’s best interest. Condominium dispute mediation is often the best way to do this, since communication (or the lack thereof) is often at the center of such disputes. Condominium dispute mediation allows the parties to determine the exact nature of the problem, and what each party expects of the other in response.

As a neutral, third-party negotiations facilitator, the mediator:

1. Serves as a sounding board to help each side assess whether or not it is being reasonable in the exchange
2. Helps each side determine potential alternatives to regulations (or the lack thereof) causing the current dispute
3. Helps each side vocalize what they want out of the negotiations
4. Helps each side understand the viewpoint of the other, even if that viewpoint isn’t shared
5. Facilitates a calm, rational discussion that eases tension rather than increases it

Often, it is this process of opening streams of communication that most helps in resolving a dispute. Many disputes occur due to a lack of communication, or a lack of clear communication, resulting in misunderstandings and misinterpretations. By helping each side to adequately communicate their issues and goals for the discussion, the condominium dispute mediator clears the way for happier interdependent living.