Why Come To Mediation?

//Why Come To Mediation?

It happened again.  A mediation that went nowhere fast when the defendant attended mediation “because” it was court-ordered. And… defendant offered zero in settlement.

It was a property damage case. Plaintiff alleged her vehicle was side swiped while parked on the street overnight.  The automobile insurance company had an “expert” look at the damage and concluded that the “accident” did not happen that way. Rather, according to the expert, plaintiff was driving the vehicle and hit something stationary. That is, it was plaintiff who side swiped something stationary along the side of the road such as a barrier, light pole, etc.

Based on its expert’s conclusions, the insurance company denied the claim contending that it was a false or fraudulent claim. So, plaintiff sued and there they were in my office, mediating.

Litigation allows the parties “to hide the ball”. That is, while the insurance company told plaintiff the results of its expert’s review of the vehicle, the insurance company refused to provide the expert report in full as expert discovery had not yet commenced. Rather it provided just the expert’s conclusions in its denial letter and then some of the photographs of the damage that it used during the deposition of plaintiff.

So, after listening to each party, I thought it might be useful if counsel met to discuss the content of the expert report. I have long ago learned that there are three sides to every story; plaintiff’s, defendant’s and the judge/jury’s. I knew that the matter would not resolve if defendant was playing “hide the ball” with its expert’s analysis.

So, counsel met along with the insurance representative who explained the meaning of the photographs in more detail and what the expert’s report said in more detail. As I assumed, plaintiff’s counsel had an alternative explanation which the insurance representative said she would consider.

After the meeting, I met again with the defense only to learn that any change in plans in terms of offering anything other than zero was above the representative’s pay grade and that she was there simply because the court ordered the mediation. That was that.

It was a short mediation. There was nothing I could do with that counter offer. Obviously, plaintiff would not settle for “nothing”.

I did ask the insurance representative, whether the insurer would have honored the claim had plaintiff given the facts of the accident as the expert viewed it; that is, the car was in motion and it side swiped some stationary object. The representative said, “yes”. So, I asked, “what is the advantage of lying?” The representative said that had the accident occurred the way plaintiff claimed, the premiums would not increase. But, had the accident happened the way the expert claimed, they would increase for three years as required by California law.

It is hard to believe that someone would lie to avoid paying a few thousand dollars (less than $4,000) over a three-year period. Yet, the insurance representative stated plenty of insureds do so.

Was the mediation useful? According to the insurer, it was shown a different way of looking at the “facts” by plaintiff and given food for thought. According to plaintiff it was a waste of time, attended by defendant not in good faith.

According to me…. I do not know. I do question the good faith of the insurer though in attending with absolute zero authority and no way to change that based on what information may be learned during mediation.  All the relevant court rules on mediation require that persons with full and complete authority to settle the case must attend the mediation. Obviously, coming with zero authority and with no ability to change that, is not attending mediation with “full and complete settlement authority.”

There must be a better way… a way to change this scenario from happening again… but due to mediation confidentiality, no one can tell the court what is truly happening.

…. Just something to think about.

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By | 2018-06-26T14:20:04+00:00 July 13th, 2018|Actual Mediations|0 Comments

About the Author:

Phyllis Pollack
Phyllis G. Pollack, Esq. the principal of PGP Mediation (www.pgpmediation.com), has been a mediator in Los Angeles, California since 2000. She has conducted over 1700 mediations. As an attorney with more than 35 years experience, she utilizes her diverse background to resolve business, commercial, international trade, real estate, employment and lemon law disputes at both the state and federal trial and state appellate court levels. Currently, she is the in­coming chair of State Bar of California’s ADR Committee. She has served on the board of the California Dispute Resolution Council (CDRC) (2012­2013), is a past president and past treasurer of the SCMA Education Foundation (2011­2013) and a past president (2010) of the Southern California Mediation Association (SCMA). Ms. Pollack received her BA degree in sociology in 1973 from Newcomb College of Tulane University and her JD degree from Tulane University School of Law in 1977. She is an active member of both the Louisiana and California bars. Pollack believes that it is never too late to mediate a dispute and recommends mediation over litigation as it allows the parties to decide their own solutions.