The Subtly of Actual Mediations

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.

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