Alexander Graham Bell once said, “Before anything else, preparation is the key to success.” We have all heard the adage to the effect that success is 99% hard work and 1% luck.
 

       So, too, with mediations. To reach a resolution during a mediation, each party must prepare for the mediation. The failure to do so can lead to a frustrating end to the mediation.
     

      This was brought home in a recent mediation I conducted. It involved a case in court and so both the plaintiff, defendants and their respective attorneys were at the mediation. Due to the nature of the action, the mediation was conducted solely in separate sessions.
     

      During my first session with each party, I explained about the mediation, its purpose, my role, the process and what was hoped to be accomplished. However, as the day progressed, it became clear to me that the plaintiff truly did not understand why she was there, or what was my role. When the plaintiff bluntly asked me, “whose side are you on: it sounds like you are against me,” I quickly understood that the plaintiff had not been prepared for the mediation. As we discussed the various issues in the case as they affected liability and damages, I could see that these were all new to the plaintiff; she had neither been counseled about the strengths and weaknesses of her case, nor about the several different possible outcomes at trial, nor about their respective probabilities and their consequences.

      More importantly, the case involved issues of constitutional dimension meaning that this case probably would not end at trial but would move on to the appellate courts and thus continue for years. Practically speaking, assuming the jury awarded money damages to plaintiff, she would not receive the money for years since defendants would post an appeal bond. All this, too, was new to the plaintiff. She did not understand that her case involved constitutional issues that may prevent her from receiving any monies awarded by a jury for years and years to come or more importantly, that her case could take on a life of its own in which she would be caught up for years to come; her attorneys wanted to make law on her case, leaving her without closure for many years.
     

      As you can surmise, although the defendants made an offer that probably exceeded what any jury would award, the plaintiff rejected it. Why? She had unrealistic expectations due to a lack of preparation for the mediation. She was making decisions without having been fully informed about all of the issues, the goals of counsel versus her goals and the consequences of each.
     

      Whether this case will eventually settle. . . I do not know. But what I witnessed was a reasonable settlement offer being rejected by a plaintiff who did not appreciate the nuances of mediation due to a lack of preparation.
     

       . . . Just something to ponder.       

       As many of you know, one of my specialties is mediating lemon law cases, (i.e. Song-Beverly Consumer Warranty Act, California Civil Code §1790 et seq). Recently, a division of the Fifth Appellate District of the California Court of Appeal issued a decision which attorneys representing consumers will applaud while attorneys representing manufacturers and dealerships will dislike.
 

       In Robertson v. Fleetwood Travel Trailers of California, Inc., (Case No. F048123) 2006 Cal. App. Lexis 1755 (November 7, 2006), the appellate court held, among other things, that the trial court was authorized to use a multiplier in awarding fees under the attorneys’ fees provisions of California’s Song-Beverly Act. The trial court enhanced the actual fees of $145,080.00 by a multiplier of .50 for a subtotal of $217,620.75 plus awarded an additional $13,566.70 in fees incurred on the motion for attorneys’ fees, for a grand total of $231,187.45. The appellate court did remand the case to the trial court to recalculate the fees based on some errors perceived by the appellate court.
 

      The facts of the case are straightforward. In July 2002, Lorna and Francis Robertson purchased from Visalia RV Sales and Service (“Visalia”) a new 39 – foot wilderness travel trailer (“Trailer”) manufactured by Fleetwood. They purchased it as a temporary home for Mr. Robertson to live in while working in California. They were permanent residents of Utah. The home was towed to a nearby trailer park. Over the next approximately fifteen (15) months, Mrs. Robertson (during her visits to California) complained to the dealer (Visalia) of a shower leak. On several occasions, the dealer sent a technician out to repair it. But it was not repaired. Finally in October 2006, she discovered the source of the leak: the P-trap was completely severed from the drain. But by then, there was also extensive water damage to the trailer: when the underside of the trailer was cut open, approximately 100 – 150 gallons of water poured out over several days.
 

      Because of the extensive water damage, the Robinsons requested Fleetwood to repurchase the trailer under California Civil Code §1793.2(d). When Fleetwood would not readily agree, the Robinsons sued. The jury found in favor of the Robinsons, awarding them $22,000 for repurchase of the trailer, $16,000 as a civil penalty against Fleetwood for its willful failure to comply with its obligations (California Civil Code §1794) and $231,187.45 in attorneys’ fees.
 

      As a mediator, I always encourage the parties to keep control of and to settle their disputes and not leave it to a court and/or jury to decide the matter for them. This case is a good example of what can happen when the parties allow others to determine their dispute. Notably, the repurchase price of the trailer was $22,000. Yet, Fleetwood was also required to pay a civil penalty of $16,000 for its “willful failure” to comply with its obligations under the statutes, and $231,187.45 in attorneys’ fees. The attorneys’ fees awarded are more than ten (10) times the cost to repurchase the trailer. Surely, this matter could have been mediated to a resolution that would have required far less in payment than what the jury awarded. . . and without all of the adverse publicity.
 

      So, during your next mediation, when you are weighing whether to settle, consider that the cost of putting your fate into the hands of strangers may be far more than you can ever imagine.
 

      . . . Just something to think about.           

        Last Saturday, November 4, 2006, I had the delightful experience of attending the Southern California Mediation Association’s annual conference and listening to Daniel Shapiro speak on using emotions as you negotiate. Together with Roger Fischer (who co-authored Getting to Yes), Mr. Shapiro has written Beyond Reason  which addresses this topic. This book is easy reading and full of insights. I heartily recommend it.
 

      One of the points Mr. Shapiro brought out in his keynote address struck a chord with me as I have seen its effect in many mediations: expressing appreciation of and to your adversary. Each of us want to feel appreciated, even our adversaries. Expressing such appreciation greatly helps in overcoming the obstacles to resolution.
 

      But. . . how does one express such appreciation? Messrs. Shapiro and Fischer provide three guideposts: (1) Understand the other person’s point of view; (2) Find merit in the other person’s point of view (which does not necessarily mean agreeing with it); and (3) Communicating your understanding to the other person through words and actions. (Beyond Reason, supra at pp. 25-51).
       

      In simple terms; first, put yourself in the shoes of the other person. Look at the issue from her perspective. Pretend the roles are reversed and you are the other person. What then do you see, feel, believe or think about the issue? In short, figure out where the other person is coming from.
 

      Next, (and only if you can sincerely do this), acknowledge to the other person that her perspective has merit. This does not require or mean that you must agree with or are agreeing with this other perspective, but simply that you can see some validity or merit to the points she raises.   
 

      Third, let the other person know that you understand her point of view and find some merit to it. Again, you can make such an acknowledgement without having to agree with her point of view. There is a difference between acknowledgment and agreement.
       

      By employing these three guideposts, you express your appreciation to and of the other person. Like a simple “thank you,” these small actions will go a long way toward resolving a dispute.
 

      . . . Just another of life’s lessons to think about.