Although the general consensus among neutrals is that the parties to a dispute should attend the mediation in person, at the same time, I have successfully mediated disputes in which one or more or all involved have attended by telephone. Indeed, I have conducted several mediations solely via telephone with success: the cases settled.

Yet, I recently had two mediations in which one of the parties attended by telephone and because of that fact, the matter did not settle. I believe the lack of resolution had a lot to do with the attitude or mindset of the party attending by telephone and my inability to change it with a “reality check” precisely because it was by telephone. Let me explain.

In the first one, a “lemon law” mediation, the plaintiff attended by telephone. The vehicle had been leased, and the lease had ended so that the vehicle had already been turned in. Yet, the plaintiff was seeking the return of all of her lease payments and down payment (approximately $20,000) because the air conditioning had a musty odor for which it was brought in for repair about four (4) times over a three-year period. Because plaintiff was appearing by telephone, I could not sit with her face-to-face and discuss the various realities of this matter; neither could her attorney. Neither of us could provide a meaningful “reality check”. Consequently, the “realities” got lost “in translation” so to speak. Would a judge or jury really award the return of all monies paid due to the musty A/C odor complained of 4 times over 36 months? (Despite the odor, plaintiff did drive the vehicle almost all of the miles allotted under the lease.) In the lingo of Section 1793.22 of the California’s Song-Beverly Consumer Warranty Act (Section 1793.22 ), is this a “nonconformity” that “substantially” impairs the use, value or safety of the vehicle, to the point of requiring repayment of all monies? While the manufacturer was willing to pay some money to settle the matter (i.e. on a diminution in value basis), it was not willing to return all of the lease payments. Some conversations are difficult to have by telephone, and this was clearly one of them.

The second involved a motorcycle that was supposedly a “lemon”. This time, it was the defendant manufacturer who was appearing by telephone. Prior to the mediation, the manufacturer took pains to try to settle the case, but plaintiff’s counsel had been non-responsive. This lack of response left a bad taste in the manufacturer’s mouth.

At the mediation, a different plaintiff’s attorney appeared explaining that a re-structuring had occurred within the firm, she was now counsel, would be handling the case to its conclusion, and would be responsive. For the first hour of the mediation, plaintiff’s counsel worked with the manufacturer’s counsel in assessing what plaintiff’s actual damages would be (the motorcycle had been totally destroyed shortly after suit had been filed, and the insurance company paid for the loss!) and was very realistic and practical in her assessment.

Unfortunately, when defense counsel conveyed the demand to her client – the manufacturer – it balked. It had the bad taste in its mouth which it was unwilling or unable to put aside. It could not abide by the adage “that was then, this is now.” It kept circling back to the non-responsiveness of prior plaintiff’s counsel and wanted to retaliate by making a minimal counteroffer to present plaintiff’s counsel who was trying to be very realistic about the value of the case! Needless to say, the matter did not settle.

Again, had the manufacturer’s representative been present, I could have sat face-to-face and implored her to let go of the past and focus on the present. I could have had a “reality check” conversation. Instead, it was another one of those difficult conversations that do not go well by telephone. The manufacturer’s representative simply cannot vent in a telephone call the way she could have done to me in person. Also, a personal “mea culpa” from plaintiff’s counsel may have helped, but again, the telephone impeded that process.

So, I guess the moral of my tale is that while mediating by telephone may be easy and practical, depending upon the surrounding circumstances, it may not be conducive to reaching a settlement. (The very much needed “reality check” may not be possible!) When someone suggests trying to resolve a dispute by telephone, think long and hard whether all of the factors exist to make it likely to be successful.

. . .Just something to think about!

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