Earlier this week, I mediated a case between a homeowner and a general contractor about an unsuccessful home improvement. The general contractor built two patios, pouring the concrete without checking the weather forecast. Later that evening, it rained heavily causing the concrete not to “cure” properly. While the contractor attempted to correct the problem by spreading another product along the top of the concrete, this “fix” did not work. As a consequence, the homeowner sued all possible parties, and the parties appeared for mediation.

The problem was that the parties were not prepared for mediation. While everyone agreed that there was a “problem” with the larger of the two patios, no one had employed an objective third party to provide a complete diagnosis of the “problem” and all of the possible remedies. Rather, the homeowner, in an attempt to keep costs down, had obtained only informal evaluations from some friends – none of them complete. The defendant responsible for the product that was spread on the concrete as a “fix,” had hired an expert but that expert was concerned only with his client’s product, not the overall project and certainly, not how to remedy the overall “problem.” The homeowner was so upset with the way the job turned out, that the homeowner would not allow the contractor onto the property to inspect the patios and assess the “problem.” The contractor did not send an expert in its stead to assess the situation. As a result, the contractor did not know the contours of the “problem” much less how to remedy them.

So. . . here were the parties at mediation attempting to resolve a dispute that was not clearly defined. None of the parties had all of the facts: they neither knew exactly what was causing the defects on the larger patio nor the possible remedies for the defects. Yet, the homeowner was making monetary demands based on the informal and incomplete evaluations given by friends. It reminded me of the game “pin the tail on the donkey” in which the players – blindfolded – attempt to pin a tail on the picture of donkey pasted on a wall. Here, the parties were attempting to “pin” damages on an ever moving and not fully known factual pattern – because no one had taken the time to ascertain the facts. “Resolution” was an ever moving, ever evasive target.

Needless to say. . . the case did not settle. How could it? No one knew the exact parameters of the dispute, and thus of the potential liability. One cannot determine damages without knowing first what happened and thus where and to what extent the liability attaches.

Consequently, a valuable opportunity – to settle at mediation – was wasted. This is a matter that should have settled at mediation: with a full diagnosis and prognosis, it would have been relatively straightforward to work out a resolution.
The moral of this tale is that before attending a mediation – be prepared. Conduct the necessary factual investigation and determine the outer boundaries of the dispute and of the various remedies. Know the facts – know where the liabilities lie and what the possible damages may be. Mediators often work magic but they cannot create a resolution out of nothingness: the parties have to come to mediation with more than just an ephemeral desire to settle.

. . . Just something to think about.


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