Well, it happened again; another mediation in which one side was not prepared. And… as you might surmise, the mediation did not last long. (This is a topic I have often addressed in my blogs.)

It involved a used automobile. The plaintiff claimed that the used car dealer breached both the express and implied warranties and more importantly misrepresented the merchantability of the vehicle. Allegedly, problems started occurring within days after the purchase and persisted to the point that plaintiff parked the vehicle and bought another vehicle elsewhere. Plaintiff claimed she did take the vehicle back to the dealer for repair several times and each time the dealer stated that it had fixed the vehicle. But, allegedly, the same problems persisted.

My concern arose about whether the case would settle when the partner of the law firm who was not handling the case on a daily basis (as she had given it to an associate to handle) appeared at the mediation on behalf of the dealer sans associate. Then the partner mentioned that the firm handles other types of matters NOT involving used automobiles. This was a one-time deal for the firm.

After speaking separately with plaintiff and her counsel about the case to understand the issues and their view of the matter I turned my attention to the defense. The partner began asking about what documents were missing in the transaction that rendered the dealer liable. As this matter allegedly was more about the alleged lack of merchantability of the vehicle, I felt that question was better answered by plaintiff’s counsel as I did not want to say too much (and breach confidentiality) or misstate.  So, I suggested a joint conference with counsel. Both counsels agreed.

In that joint session, it became painfully clear that the partner was not familiar with the alleged detailed facts laid out in both a pre litigation letter to the dealer and in the complaint. Indeed, it appeared that the partner was not even aware that plaintiff allegedly had asked to unwind the deal in writing more than a year ago. Plaintiff’s counsel sensed this as well and started getting angry. While “fake” anger is sometimes used as a negotiation tactic to gain a concession, I don’t believe it was faked here. It was more a display of frustration; the parties had agreed to private mediation and plaintiff had come prepared to settle only to find defense counsel “winging it” with no knowledge of the issues, plaintiff’s complaints or the law.

Further, although an insurance company was named as a defendant in the lawsuit, a representative was neither present at the mediation nor available by telephone. Rather, after experiencing the anger and frustration of plaintiff’s counsel, the partner requested that the mediation be terminated to allow the partner to speak with the insurance company representative about the “new” facts learned during the mediation. So, the matter was adjourned after barely getting started.

Obviously, I do not know whether this matter will settle, although I hope so. I do know that while unintended, plaintiff’s display of anger probably helped knock some reality into the defense, forcing the partner to realize that this matter was a lot more serious than initially thought. Whether that will equate to more money in settlement or even a settlement is a question that remains unanswered.

All I know is if the defense had come prepared, the matter most likely would have settled at mediation  as opposed to dragging on so that the defense can play “catch-up” and all the while both sides spending more time and incurring more expense.

The moral here is obvious: come prepared to a mediation- know the facts, know the law, know the issues; have a settlement strategy in mind including an amount for settlement and most importantly, have all the parties needed for settlement present either in person or by telephone (or by Zoom.).


….  Just something to think about.


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