PGP Mediation Blog by Phyllis G. Pollack
I just finished conducting a mediation (lemon law) which did not settle. And I think the prime reason was that there were too many different attorneys handling the matter. Although in the same firm, they apparently were not communicating with each other or the representative of the client handling the mediation.
Plaintiff purchased a vehicle which turned out to have certain issues. So, after hiring an attorney, suit was filed in court. The court ordered the parties to mediation and so, there I was, mediating their case.
During my first separate session with Plaintiff and her counsel, they told me that they took the deposition of the Person Most Knowledgeable (“PMK”) of the defendant manufacturer and that during the deposition, the PMK admitted that the issues with the vehicle could be deemed “non-conformities” or defects that “substantially impaired the use, value or safety of the vehicle.” (These are the magic words or the essence of California’s lemon law.) So, I asked plaintiff’s counsel whether defense counsel was aware of this testimony because I knew that the defense counsel was not the one handling this case: she was just appearing at the mediation. Plaintiff’s counsel did not know so I suggested a conference among the attorneys and me if this was indeed the case.
It turned out that defense counsel was unaware of the deposition testimony, so we had the conference in which Plaintiff’s counsel explained the PMK’s testimony.
I was hoping that this made a difference. My hope was ill-founded.
Knowing that Plaintiff was demanding a repurchase of the vehicle, I asked defense counsel what offer its client was willing to make. At first, she stated that the manufacturer was going to make the same offer it previously made in its offer to compromise. I suggested that this might be bad faith on its part. (Why come to mediation if the offer is the same as before?) So, she agreed to offer a bit more.
But, it turns out, that the defense counsel did not know the details of the offer to compromise because what she offered (even after adding to the initial offer) was still less than the offer to compromise.
In response to my presenting this “new” offer to plaintiff’s counsel, the latter pulled up a copy of the offer to compromise on her computer and sent it to me, so I could print it and show it to defense counsel.
Only after I showed the offer to compromise to defense counsel, did she offer more money. But… nowhere near what Plaintiff was demanding.
While subsequent offers and demands were traded, the parties never reached the zone of possible agreement; they never got on the same page.
And I think the reasons were twofold: the lack of coordination among defense counsel which, in turn, led to the particular representative of the client (who was handling this mediation) not being fully aware of everything either. She, too, did not know about the deposition testimony and was not fully aware of the contents of the offer to compromise. As a result, the amounts she was authorizing were less than previously offered.
This matter should have settled. It did not for one reason: lack of preparation. In my many blogs over the years, I have discussed the importance of preparation: know your case and everything about it before you walk in. Attending a mediation should not be the time to learn your case or constitute the learning curve. If it is, as in this matter, you lose a valuable opportunity to settle a case given that all the parties and all counsel are in the same place at the same time focusing on the same matter. To try to settle a case outside of mediation is often like herding cats; possible but quite difficult to do.
Furthermore, it is simply impossible for anyone to learn information for the first time at a mediation and make decisions then and there based on that new information. It is human nature to want to mull it over, investigate further, and conduct due diligence on newly acquired information. We simply will not make snap decisions based on something told us two seconds ago!
So… prepare, prepare, prepare and if more than one attorney is involved, keep everyone very well informed on everything that occurs!
… Just something to think about!
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 well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides. When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.