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A Lesson Learned!

Last week, I conducted a lemon law mediation which highlighted a very valuable lesson. People need to be heard, acknowledged, and told that what they are saying has merit.

The plaintiff leased a luxury automobile. At one point, she brought it in to the dealership after the check engine light came on. The dealership, after inspecting the vehicle and checking the fault codes in the vehicle’s computer system, determined that a new part had to be ordered. It took only a few days for the part to arrive. However, when the part arrived, it was damaged and so had to be re-ordered. Between the delays caused by the pandemic, and the supply chain issues we have all read about, it was quite a while before the new part arrived. Finally, after almost 90 days, the vehicle was fixed and returned to the plaintiff. While the vehicle was in for repairs, the plaintiff was provided with a loaner vehicle so that she was not inconvenienced. The vehicle was fixed such that the plaintiff never returned complaining about the problem again.

Under California law, before bringing a lawsuit, there must be at least two repair attempts with the vehicle still in need of repair. Despite this, the plaintiff sued the manufacturer seeking a repurchase of the vehicle claiming a breach of both the implied and express warranties. With respect to the implied warranty, the plaintiff claimed it was a latent defect that showed up past the normal one-year time limit for breach of implied warranty and thus still qualified.

As one might guess, the plaintiff received much push back from the manufacturer since at first glance the vehicle did not qualify under California’s lemon law; it had gone in for only one repair and was fixed; the case law was clear that at least two repair attempts with the vehicle still not fixed were needed to qualify.

So, during the mediation, I asked the plaintiff why she brought the lawsuit. The “why” question was perhaps the most important question I asked during the whole mediation. And the answer went to the heart of integrative negotiation.

Plaintiff needed to be heard and acknowledged. Her vehicle had been in the repair shop for almost three months, and although she had been given a loaner vehicle, the manufacturer made no effort to acknowledge how inconvenienced she had been by perhaps offering to pay the three months of lease payments due while the vehicle was in the shop. Rather, the repair shop just handed her the keys and told her it was fixed, with no recognition to her that some sort of reparation should be made since almost three months in a repair shop is extraordinary.

With the plaintiff’s permission, in my next caucus with the manufacturer, I explained that was what really going on here was Plaintiff’s upset about not having her own vehicle for close to three months without any sort of acknowledgment by the dealer of this inconvenience. Her needs and interests that almost 90 days without her own vehicle had been an imposition needed to be heard and acknowledged by the dealership and recognized as having merit.

Once I explained this to the manufacturer and its counsel, they readily acknowledged that this was at the heart of the lawsuit; it was not really about whether the car was defective, but rather about poor customer relations. Soon thereafter, the matter settled.

Many times, a conversation is not really about its substance or subject matter. It is about the need of the person speaking to be heard, to have what she is saying acknowledged, and that what she is saying has merit. To acknowledge is not to necessarily agree. But once heard, acknowledged, and given merit, the conversation will be a lot less contentious, and much smoother.

…Just something to think about.


Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE

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