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The Subtlety of Actual Mediations

PGP Mediation Blog by Phyllis G. Pollack

Most folks think that the purpose of mediation is to settle cases. However, in the last few weeks, I have conducted some actual mediations that were "successful" yet did not settle. Although the parties came to mediation with the goal of settling, they walked out accomplishing other purposes.

There are many secondary goals or reasons for using mediation. One is to narrow or focus on the issues in the case. For example, I conducted a lemon law mediation recently in which the plaintiff purchased the vehicle out of state and had it registered in another state as well. However, plaintiff lived, worked and drove the vehicle in California. In actuality, the vehicle was registered in the name of a corporation which as it turns out, no longer existed. Recognizing that California’s Song Beverly Consumer Warranty Act would not apply, plaintiff sued under the federal Magnuson -Moss Act. However, issues of law remained; which state’s law would apply under the federal statute? Does the corporation which no longer exists even have the right to sue? Is the whole claim barred by a statute of limitations using which state’s law? Et Cetera. While defense counsel had given much thought to these thorny issues, it appeared that plaintiff’s counsel had not. Thus, when defense counsel raised these thorny issues with plaintiff’s counsel, plaintiff’s counsel realized she had much research to do to determine these and other issues. So, while the case did not settle, it helped the parties focus on the myriad of legal issues in the case, and most certainly bring them to the forefront of plaintiff’s counsel attention.

Another reason for mediation is to help counsel evaluate how parties will appear as witnesses. In a recent lemon law mediation, plaintiff complained of the vehicle surging or sudden acceleration. The defendant manufacturer could not duplicate it and so was unwilling to repurchase the vehicle. During the mediation, the parties held a joint session, allowing the defense counsel to listen to the plaintiffs and determine their likability by a jury. The plaintiffs appeared extremely sincere and credible and those that a jury would believe and like. Again, the matter did not settle at mediation. However, defense counsel reported back to her client that the plaintiffs would make extremely good witnesses; as a result, she was able to get the authority needed to settle the matter. The case just settled.

A third reason for attending mediation is to have reality checks; to convince one or both parties to become more realistic; to lower their expectations of what will happen at trial. In a recent mediation, plaintiff was representing herself. She was a homeowner in a HOA [Home Owners Assoication] who had not paid the association fees. As a result, the association had foreclosed and now held title to the condo. When the HOA moved to evict the homeowner, she sued to stop the eviction. Although she had initially been represented by an attorney, she was now representing herself. During the mediation, a joint session was held to understand exactly what it was that plaintiff wanted and also to explain to plaintiff that despite what her lender was saying, she did not own the condo; the HOA did. Defense counsel patiently explained to her how she would file a motion for summary judgment that, in all likelihood, would be granted, and plaintiff would lose and forfeit the equity that she had in the condo. Rather than pursue this hard course of action, defense counsel stated she wanted to work with plaintiff to resolve the matter in a way that was palatable to all concerned. While the matter did not settle, the reality check was certainly given.

A fourth reason that mediation is helpful when a matter does not settle is to provide multiple defendants an opportunity to be in the same room at the same time to discuss a united approach to plaintiff’s demands. In a recent mediation involving the sale of a used car to plaintiff that, in fact, had a salvage title, unbeknownst to plaintiff, the parties had agreed that the vehicle should be repurchased as it was clear that one cannot sell a vehicle with a salvage title without full disclosure. Plaintiff was unable to register the vehicle. The issue between the defendant and cross- defendant was how to spread the liability; which defendant would bear what proportion of the expense to repurchase the vehicle and her attorneys’ fees? Being in the same room at the same time provided these two parties with the opportunity to share information and to piece together a story of what had happened. The vehicle had been in an accident, the insurer had totaled it but somehow this did not get reported prior to the sale to plaintiff. However, by sharing documents and discussing the facts, the two parties made much progress in determining what had happened; no doubt, the case will settle in the next few weeks.

The above actual mediations also reveal other reasons for mediating; to disclose "bombshell" information and/or to filter and diffuse harmful information as occurred in the mediation involving the defunct corporation with the vehicle registered and bought outside of California; to obtain discovery informally as occurred in the surging vehicle mediation by counsel informally meeting and talking with plaintiffs, and to discuss creative proposals as occurred in the HOA mediation.

So- while these matters did not settle at mediation, I truly believe that the mediation definitely helped moved each of these matters towards an eventual resolution.

(For a more complete discussion, see, Cooley, John W., The Mediator’s Handbook (2d. ed. National Institute for Trial Advocacy, 2006) at chapter 1.1.3 at pages 12-20.)

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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