I have always believed that a lot of the lawsuits result from a lack of communication or miscommunication. I have also believed that using joint sessions in mediation can be most helpful to clear up a misunderstanding or a lack of understanding. Despite my beliefs, I still mediate a lot of lawsuits in which the parties request that they be conducted by separate sessions only; they do not want to sit across the table from the “enemy” and hash it out. Perhaps they are afraid that the “truth” will ruin their case.

A recent mediation that I conducted highlighted the importance and usefulness of a joint session. It was a “lemon law” case in which the plaintiffs wanted their vehicle repurchased by the manufacturer. The plaintiffs purchased an expensive sports car that came equipped with a lot of fancy features. In all probability, when the dealer delivered the vehicle to plaintiffs, its sales person did not take the hour or so needed to review the operation of all the fancy features with the plaintiffs. Most likely, the plaintiffs simply picked up the vehicle, signed the necessary documents and left.

The issue in the case was the alleged malfunctioning of some of these fancy features. Plaintiffs claimed the features were not working correctly due to an “overall electrical problem” with the vehicle. The manufacturer alleged that due to all of the varied and discrete or independent systems in the vehicle, there could be no “overall electrical problem”. Rather, from the way the plaintiffs were describing what was going “wrong” with the vehicle (through me as the “messenger”), to the manufacturer’s representative, it sounded as if the plaintiffs did not fully appreciate how to use the fancy features and what such features could and could not do. The manufacturer’s representative opined that the plaintiffs may have been doing things that they did not realize they were doing, thereby “causing” the fancy features to “malfunction.” When I indirectly suggested this to the plaintiffs, they, naturally, took umbrage as they both have advanced degrees and so believed that they were quite capable of working these fancy features, even on their own without any instruction. (Yet, at the same time, I did point out a basic feature that they did not realize existed; no doubt, immediately, after the mediation, they checked to see if I was correct!).

During the mediation, the manufacturer’s representative expressed a sincere desire to help the plaintiffs understand the fancy features and how they worked. The representative really wanted to figure out what was going “wrong” and do what was necessary to correct the “problems”. But, the plaintiffs did not want to have a joint session much less any face to face problem solving discussion with the representative; they both had advanced degrees, they knew how to operate the fancy features, and the car was a “lemon”- no ifs ands or buts about it.

The manufacturer’s representative, on the other hand, viewed the case as having minimal value because every time the plaintiffs had brought the vehicle in for repairs, the dealer could not duplicate the concerns or find any fault codes in the vehicle’s computer system indicating that something had gone wrong. Based on what I relayed during the mediation, the representative believed that to a large extent, the fancy features were being used incorrectly. Yet, as much as the representative wanted to explain this to plaintiffs, they were unwilling to listen.

So, the mediation ended with plaintiffs insisting that the vehicle be repurchased because there was a defect in the overall electrical system and with the manufacturer believing the matter had minimal value.

Before ending the mediation, I did attempt to have counsel discuss the case; unfortunately, neither was really listening to the other. Each was adamant in the position taken. Neither was willing to accept that just maybe, the other side may have a point.

So, trial is set to commence in the next few months. I walked away from the mediation feeling that it had been a wasted opportunity. If the parties had just been willing to sit down together and discuss the issues with an open mind, then perhaps a resolution could have been reached. As it is, this matter will continue to tax an already overburdened judicial system in Los Angeles County Superior Court by moving towards an unnecessary trial.

I wish more people would be willing to listen, really listen to what the other side has to say; to sit in a joint session and have a “candid” discussion of the issues. To accept the notion that there is more than one side to a story, that there may, indeed, be a simple explanation or that they may be, indeed, doing something incorrectly which is why the “problem” exists. It seems that to a lot of folks it is so much easier to brusquely dismiss what the other side is saying with the thought, “I’m right and they’re wrong!” I guess people won’t do this because they are afraid the other side will “bite” them, or that the “truth” will ruin their case!

… Just something to think about!

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