In my various mediation training classes, we have discussed the pros and cons of an apology; whether it should be given and if so, under what circumstances.

       From my own life experience, I know that apologies are important but I did not realize what a real difference they can make or how powerful they can be until today.
 

      Today, I mediated an emotionally difficult case. The plaintiff, of baby boomer age, rented an apartment in a secure building. The owner of the building employed a resident manager and handyman on the premises. According to plaintiff, although the handyman was often drunk at work, the manager did nothing about it and, in fact, often shared cocktails with him on her patio.
 

      One evening while plaintiff was walking to the apartment of one of her friends in the building, the handyman accosted her and began groping. Only with the assistance of one of her neighbors was plaintiff able to escape out of the corner into which the handyman had pinned her.

       This event traumatized plaintiff for which she sought counseling. While the counseling helped a great deal, it was obvious during the mediation that the emotional scars still existed.

       Prior to the mediation, I was inclined not  to hold a joint session. However, just prior to the start of mediation, I discussed this issue with defense counsel and the defendant’s representative. They stated that for purposes of the mediation, they were not contesting the events or otherwise taking issue in any way with what had occurred. I suggested a joint session so that they could make this acknowledgment directly to plaintiff.
 

      So with plaintiff and her counsel’s permission, we held a short joint session. We did not discuss the event itself but simply the parties’ perspectives on the matter.
 

      After plaintiff’s counsel finished, defense counsel spoke for a few moments noting that the issues were not being contested for purposes of the mediation. Then the representative of the landlord spoke. The first words he said were directed to plaintiff: “I apologize for what happened to you.” He continued, and the reactions of both plaintiff and her counsel were visible: their hardened demeanors softened considerably. Someone had not only acknowledged that the event had happened but had apologized for it.
 

      With this acknowledgement, the sole issue remaining was the amount of damages. After several rounds of negotiation, the parties agreed on a sum, and drafted and signed a settlement agreement. It was over. It did not take very long at all to resolve this matter.
 

      Afterward, plaintiff’s counsel told me that when she and her client walked in to the mediation, they had planned to take a hard line, ask for a large sum of money and not negotiate much below their initial demand. But, then, the landlord’s representative apologized. That apology changed everything. Up until the mediation, no one from the landlord, not even the resident manager (who was well aware of the event at the time it occurred) had acknowledged to her that the event had even occurred much less asked her if she was okay. Rather, the resident manager ignored the whole thing as if it had never occurred. The apology was the first  acknowledgment  that something bad, indeed, had happened to plaintiff which should never have happened. It thus became the most important part of the mediation. Because of that apology, plaintiff was willing to settle and in fact, settled for a much smaller sum of money than she had in mind when she walked into the mediation.
 

      An apology: it can be quite powerful!  

      Perhaps this is why, within recent years, thirty five (35) states and the District of Columbia have enacted statutes excluding expressions of sympathy after accidents as proof of liability while five (5) states have passed statutes requiring mandatory notification of adverse events to patients. These statutes were enacted mainly with medical malpractice in mind:  to assist the medical  community in its efforts to deter or reduce litigation and the amounts paid in settlement by being able to express sympathy without such expressions being considered admissions of liability. These statutes allow the medical professional to be human without exacting a large price for showing that humanity.

       As Patricia  A. Bronte explains in her article entitled ‘Reviving The Lost Art of Apology” published by the Section of Litigation of the American Bar Association:
        

        “Although the apology statutes were enacted within a relatively short    period, there are significant differences among them. All of them provide evidentiary protection for simple apologies (“I’m sorry you were hurt”); unfortunately, one study has shown this type of apology to be the least effective, and possibly counterproductive, in reducing litigation and settlement amounts. Five states have apology statutes that also protect partial apologies (“I made a mistake and I’m sorry”), but only Arizona’s statute explicitly protects full apologies (“I’m sorry, it was my fault you were hurt”). Statutes in 13 states clearly protect simple apologies and may also cover broader apologies.  “
 

      One example is the California statute.  California Evidence Code Section 1160 (california-evidence-code-section-1160) provides, in part,  that “…portion of statements, writings, or benevolent gestures expressing sympathy  or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident ….shall be inadmissible… A statement of fault , however…. shall not  be inadmissible….” 
 

      So, apologies are powerful and can go a long way to avoiding  litigation altogether or greatly reducing  the settlements often exacted to conclude it.  

       The next time are in a dispute, rather than letting it get out of hand,  think about simply saying” I apologize.”
 
       . . .Just  something to think about.

      If you have not done so already, do not forget to sign up for the Southern California Mediation Association’s 2009 SCMA Conference I am in charge of it and hope to see y’all there! 

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       Late last year, I mediated a “family” dispute involving facts that were stranger than fiction. It seems that Jane Jones (fictional name) had a relationship with Joseph Smith (again, a fictional name). They had two children together, although they never married. They, then, went their separate ways.
 

      However, Ms. Jones went to family court and obtained orders requiring that Mr. Smith pay child support. Years went by, and Mr. Smith did not pay the child support. So, Ms. Jones went to the Child Support Services Department (“CSSD”) to obtain enforcement of the child support orders. CSSD agreed to do what was necessary to enforce these orders for the outstanding child support which by this time amounted to about $50,000.

       It seems that Mr. Smith had a mother (Mother Smith, another fictional name) who lived outside of the city but owned a piece of commercial real estate within the city that required remodeling. So Mother Smith wired $50,000 into her son’s bank account for his use to oversee and pay for the remodeling of  her commercial real estate.

       As fate would have it, when she wired the funds into her son’s account, there was a levy on the account by the CSSD for the outstanding child support. So, CSSD took the $50,000 (meant for remodeling Mother Smith’s property) and applied it to the outstanding support obligation of Mr. Smith.

       Suddenly, Ms. Jones found herself with $50,000. Mr. Smith, quite upset at this turn of events, telephoned Ms. Jones requesting  that she return the money, claiming that it belonged to his mother and was meant to pay to remodel his mother’s commercial real property.
 

      This is where the facts get muddled.

      During the ensuing litigation, Mr. Smith claimed that Ms. Jones agreed to return the money, acknowledging that the money belonged to Mother Smith, not  to Mr. Smith. In this connection, Mr. Smith contended that Ms. Jones met him at the Child Support Services Department and agreed to and,  in fact, signed a Stipulation and Order Waiving Unassigned Arrears (“Stipulation”) which in essence, would order the return of the money to Mr. Smith.
 

      However, Ms. Jones, during the ensuing litigation, disputed this claim, contending that while she, did, indeed, meet Mr. Smith at the CSSD’s office, she never signed the Stipulation to waive the arrears, but rather her signature was forged. She further denied ever acknowledging that the $50,000 belonged to Mother Smith or that she agreed to return the money.
 

      The Stipulation did have a signature on it, which Mr. Smith claimed to be that of Ms. Jones, and was, in fact, notarized. (Ms. Jones later claimed she signed a blank notarial form). Based on the Stipulation, the court entered an order authorizing the return of the $50,000 to Mr. Smith.

       When Ms. Jones refused to comply with the court order and return the funds, claiming her signature was forged, Mr. Smith and his mother, Mother Smith, sued Ms. Jones for the return of the money.

       So here they were. . . at my offices for mediation. A father and grandmother seeking to recover $50,000 that the father owed in back child support,  because the grandmother had sent it to her son (the father) to use for remodeling some commercial real estate. Despite the fact that the mother – Ms. Jones – claimed she had used the money to pay the mortgage (to keep a roof over the children’s heads) and other expenses for the kids, plaintiffs still wanted the money returned.
 

      Throughout the mediation, Ms. Jones – representing herself – insisted that her signature was forged and that she had never agreed to return the money. She further insisted that she had signed the notarial form in blank. Nonetheless, to avoid the  trauma of trial, she agreed to take less in child support each month so that Mr. Smith could pay the difference to his mother – Mother Smith – to pay back the $50,000 over time.
 

      At the very last moment, Mother Smith refused to sign the settlement agreement: she wanted more money and sooner. So, after a full day of mediation, the case did not settle.

       I did not hear anything more about this matter until two weeks before trial. The plaintiffs’ attorney called to tell me that he had convinced Mother Smith to accept the original settlement. He asked if I would inquire of Ms. Jones whether she would agree.
 

      Over the next two weeks, the phone calls went back and forth. Initially, Ms. Jones would not agree, but then as it drew closer to trial, she agreed, but with new terms. Finally, on the day before the trial was to start, Ms. Jones agreed to the original deal. I  advised plaintiffs’ attorney of this so that he  could formalize the agreement by putting it in writing and fax it to Ms. Jones for her signature that afternoon.

      I assumed the case had settled.

      My assumption was wrong. Around mid-morning on the next day, I received a telephone call from plaintiffs’ attorney. Ms. Jones never signed the agreement but instead showed up in court. She refused to settle, claiming her signature had been forged. The plaintiffs’ attorney thinking the case had settled, had released his witnesses from their subpoenas to appear at trial to testify and had otherwise not prepared for trial. When the court heard that the case had, in fact, not settled, it ordered the parties back that afternoon to begin trial. The plaintiffs’ attorney called me to see if I could assist in some way to settle the case. I was not successful. Ms. Jones did not want to settle but wanted to take her chances at trial. She still insisted that her signature had been forged. So, trial started that afternoon.

       The next day I telephoned plaintiffs’ counsel to learn the outcome. I was told that once under cross-examination, and  sworn to tell the truth, Ms. Jones admitted that she had, indeed, signed the Stipulation – it was not a forgery – and that she had, indeed, acknowledged to both plaintiffs that the money belonged to Mother Smith  and that she would return it.
 

      Then an even stranger thing happened. The plaintiffs’ attorney told me that based on this admission, he was about to move the court for a judgment  against Ms. Jones and in favor of his client Mr. Smith  when his client Mr. Smith stopped him and asked to confer  privately with him. Mr. Smith – about to obtain a judgment for $50,000 against Ms. Jones – wanted to renew the settlement proposal to Ms. Jones (that is, she simply pay less child support every month so that he could  pay the difference to his mother, Mother Smith). The attorney, although quite taken aback by his client’s instructions, offered the settlement to Ms. Jones and this time, she accepted, on the record in open court. Mr. Smith’s rational: “she is still the mother of my kids.”

       What a strange ending! During the mediation, Ms. Jones had the plaintiffs’ attorney convinced that her signature on the stipulation was a forgery. From the facts, it appeared to Ms. Jones that the plaintiffs were cold, heartless and selfish for wanting the money back that was owed and in fact was used to take care of the kids. But, in the end, it was the plaintiff  Mr. Smith who had the “heart” and the defendant Ms. Jones who was making it all up for reasons known only to her.

       Credibility is a hard thing to judge. You don’t always get it “right”.  Trials can be dangerous; that is why it is always better to settle. 

       . . . Just something to think about.

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       In late May 2009, I flew back to my childhood home to help my siblings move our mother into an assisted living facility. As she had been living in the family home for close to sixty years, it was the move from *!!##*##!!*,  to say the least. (See, The Greatest Generation.)
 

      Because our mother was so ornery about the move due to her inability to comprehend her situation (thanks to severe dementia), it was suggested that my siblings and I petition the court to become her legal co-guardians, and thus have her declared legally incompetent.
 

      We did so and at the hearing, the only issue about which the judge expressed concern was whether the three of us (my siblings and I) got along well enough that we would not reach an impasse or come to blows in making decisions about our mother’s care and well being. We assured the court that this would not be an issue. Accepting our responses ( as we had all been sworn to tell the truth), the court granted our petition. Each of us became a legal co-guardian of our mother.
 

      Since that day in June, I have not thought much about the judge’s concern . . .until this past week. I had a mediation involving a partition of real estate. A mother had left real property with a large home on it to her children. The children could not agree who should contribute how much to pay the mortgage and other expenses of the property. One of the children, plaintiff, claimed that the others were not contributing at all to these monthly expenses such that she was paying for everything. Due to her limited income, she could not continue to do this, indefinitely. (The situation was so bad that although the siblings were living in the same house, they were not  even speaking to each other). To prevent a foreclosure from occurring at some point in the future, thereby ruining her credit, the plaintiff sibling filed a petition requesting partition of the real property which, once granted, would lead to a forced sale of the property.
 

      So, the court set the matter for trial in late 2009 and sent the matter for mediation.  In reviewing the briefs submitted for the mediation, I quickly realized that starting with separate sessions was the proper strategy: to put the siblings in the same room initially would only lead to fireworks, an explosion of tempers and one or more of them storming out of the mediation.
 

      I met and spoke first with plaintiff and her counsel and then met with defendants and their counsel. My goal was to provide the dose of reality that if they did not stop squabbling and bickering, the house would be sold out from underneath them, and due to the downturn in the real estate market, they would end up with zero. In fact, they would be lucky because thanks to the wisdom of the California legislature during the last horrendous economic downturn (aka The Great Depression), they would not have to pay any deficiency or shortfall if the sale of the real property brought in less than what was owed on the mortgage.
 

      Slowly, I made some headway, to the point where the parties agreed in principle to sit down each month at the kitchen table in the home and go through the bills and jointly pay them. To see if this could, indeed, become a reality, since at present they were not even speaking to each other, and with everyone’s consent (their lawyers included), I held a joint session to work out the details of their plan to work together every month to make sure all of the bills were paid.
 

      Needless to say, it was a very stormy session. Each sibling had to get the anger and frustration out and off her chest. The old wounds did not heal immediately despite the apologies. When one sibling suggested a provision, the others jumped all over her, ascribing evil motives and bringing up alleged past wrongdoings, and the squabbling would begin again for a few minutes until I  “suggested” a truce.
 

      More than once, both I and their attorneys had to remind them that if they were unwilling to cooperate and work together, the real property would be sold, courtesy of a court order, and they would end up with nothing. . .  absolutely  nothing, and that this would occur before year’s end.
 

      Finally, what I and their attorneys had been telling them for more than a couple of hours, sunk in. They saw the “light” and realized they had to work together for their mutual benefit or else lose everything. They were at the tipping point, and they now realized it. (Nash’s equilibrium was at work: it became more beneficial to work together than independently towards the same goal.) They finally saw the “big picture” and stopped getting lost in the forest for the trees.      
 

      After an hour or so more, the details of an agreement were all worked out and they left with a rocky truce and sort of as a “family” again.
 

      But, watching them together, squabbling, gave me a whole  new insight into the judge’s concerns about whether my siblings and I got along well enough that we would not lose sight of the Big Picture: taking care of our mother.
 

      The lesson I learned watching these folks: Do not let minor issues distract you from focusing on your goal. There can be an awful lot of trees in a forest: don’t get lost in them.
 

     . . . Just something to think about.

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        Last week, I mediated a very contentious dispute that was fueled by a misassumption. Only late in the mediation did the parties realize the existence of the misassumption. In the words of our President, it became a “teachable moment.” The teaching: never assume.

      The dispute was simple. A homeowner suffered a fire loss and so made a claim to her insurance company. Eventually, the claim was settled and the insurer issued two checks, payable jointly to the homeowner and her lender or mortgage company. The homeowner allegedly forged the endorsement of the mortgage company and attempted to negotiate both checks. She was able to negotiate one of them but the bank became suspicious and was able to have its depositor, the insurer, request a stop payment on the other. The homeowner then vanished. The mortgage company then requested the insurer to re-issue the second check and send it directly to the mortgage company. The insurer refused, contending it owed a duty to the insured to pay her and was concerned that the insured might reappear and request the payment. Thus, the dispute arose.          
  

      For more than a year, the parties corresponded: the mortgage company insisting that it was entitled to the re-issued check, while the insurer, citing various reasons, claimed it should hold the funds to be given to the insured, if and when she reappeared. Themes of bad faith and entitlement to punitive damages were flying between the parties.
 

      In preparation for the mediation, the insurer’s counsel sent a very thorough, detailed brief containing many exhibits. It was signed by the attorney (I will call her “Esquire, Senior”) who had been handling the matter from the beginning. Counsel for the mortgage company submitted her brief and again it was signed by the attorney (I will call her “Mortgage Attorney”) who had been handling the matter throughout.
 

      The parties then appeared for the mediation session. The Mortgage Attorney and a senior representative of the mortgage company arrived at the mediation. But, on behalf of the insurer, a junior attorney (“Esquire, Junior”) appeared without her client who was appearing by telephone. Immediately, the Mortgage Attorney and her representative became upset: they felt disrespected. They believed that – deep down – the insurer knew it  had no valid reason to not re-issue the checks for the past year or more and so  sent Esquire, Junior to “take the heat” for its “bad faith” tactics and otherwise unprofessional behavior. They believed that Esquire, Senior was “playing dirty” by not showing up  but, instead, took  the “cowardly” road of sending a junior associate to handle what  would be a very contentious and unpleasant mediation.
 

      So, if the mortgage company and its counsel were not livid about this case before, they  certainly became so. They, immediately opined: “Esquire, Senior does not even have the “guts” to show up herself.” However, being polite, they did not raise this directly with Esquire, Junior. Instead, they seethed, silently, and/or vented to the mediator during the separate sessions.
 

      Only, many hours later, as the matter was settling, did Esquire, Junior mention that solely because of a family emergency arising late the prior afternoon, Esquire, Senior could not be there: otherwise, she would have been present to “take the heat” herself. She further mentioned that it was and is not Esquire Senior’s “style” to send an associate to do her “dirty work”.
 

      Upon being told this, a palpable shift in attitude appeared on the faces of the Mortgage Attorney and her representative. They had ascribed evil motives where there were none which had fueled their anger and infected their negotiations. They had assumed, and had done so, erroneously. Had they not done so, perhaps, the mediation would not have been as contentious or taken as long to resolve.

       I have always said that litigation occurs mainly due to a lack of communication or a miscommunication. People assume the wrong things or take a communication the wrong way and sue over it, only to find out years later the error of their thinking. Here, the mediation got off to a bad beginning and lasted longer than it should have because of a misstep and misassumption.
 

      The lesson: never assume, just ask instead.

       . . .Just something to think about.

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        What is the duration of the implied warranty of merchantability under California’s Song-Beverly Consumer Warranty Act (Civil Code §1790 et seq.) (“The Song-Beverly Act”)? Is its duration simply as set forth in Civil Code § 1791.1(c):

      “The duration of the implied warranty of merchantability. . . shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer. . . .”

       Or, is it something different? Does the statute mean what it says or something else?

       In Mexia v. Rinker Boat Company, Inc., (Case No. E045443), Division Two of the Fourth Appellate District of the Court of Appeal in California (June 15, 2009) held that these words do not mean what they say, but, indeed, mean something different.

       On April 12, 2003, Jess Mexia purchased a boat manufactured by defendant Rinker Boat Company (“Rinker”) and sold to him by Miller Landing (“Miller”). By July 2006, the boat needed repairs due to defects relating to corrosion in the engine. (Id. at 4). He returned the boat on July 8, 2005 for the repairs. When defendants allegedly failed to repair the boat so that it would conform to the applicable warranties, Mexia filed suit in November 2006.

      The trial court sustained the demurer without leave of Rinker and Miller on the grounds that this statute is a one year statute of limitations and thus barred Mexia’s claim. Mexia appealed the trial court’s judgment dismissing his lawsuit.

       On appeal, Rinker and Miller changed their argument to urge that although the applicable statute of limitations is four years, this lawsuit is still barred because Mexia was required to discover and report the defect within the time specified by the statute.

       The appellate court rejected this argument. The court determined that given the plain language of the statute, it “. . . creates a limited, prospective duration for the implied warranty of merchantability; it does not create a deadline for discovering latent defects or for giving notice to the seller.”  (Id. at 3).

       The appellate court rejected the notion proffered by Rinker and Miller “that latent defects must be discovered and reported to the seller within a specified time” (Id. at 17), claiming that this theory had no support in the text of the statute. The appellate court reasoned  that “if the legislature had intended the duration provision to impose a deadline for consumers to give notice of defect. . . it could have easily done so. It did not” (Id. at 18).

       Rather, the appellate court interpreted this “duration provision” – Civil Code § 1791.1(c) – as providing the implied warranties under the Song-Beverly Act with a limited prospective existence beyond the date of delivery” (Id. at 20) but as not imposing any sort of notification deadline. (Id. at 18).

         Based on its determination, the appellate court reversed: Mexia could allege a breach of the implied warranty even though he did not first raise the issue until more than two years after he purchased the boat.

       The morale of this story: a statute does not always mean what says. Especially where as here, the statute is consumer oriented, and enacted to expand consumer protection and remedies, a court will provide an expansive interpretation whenever possible. It will construe the statute as broadly as possible so as to implement what it views to be the legislative intent.

      . . . Just something to think about.

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