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Being Human

by Phyllis Pollack
February 2011

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

I conducted a “lemon law” mediation last week. It was a bit unusual in several ways. First, the repair history indicated that there were multiple issues with the vehicle that, despite innumerable days in the repair shop, had not been fully resolved: one or two of the many issues kept recurring.

After reading the repair history, my first question to myself was why were these parties even coming to mediation? Why had not the vehicle been repurchased already? Having conducted several hundreds of these mediations, I guessed that the answer could be “outside influence” or “non-warrantable defect”. That is, Defendant believed that some third party – not necessarily the plaintiff -had tinkered with the vehicle to cause or create the concerns at issue. But usually, the fancy computers on these vehicles will reveal a pattern that arouses suspicion and/or such suspicions are reflected on the repair orders. But, looking at the repair orders again – usually verbatim of what the service advisors have written and what the technicians did and found – no such “suspicions” revealed themselves. So what was going on? I had to wait until the mediation to find out.

As usual, I started with a joint session so that the parties could have a candid discussion of the repair history, the concerns at issue and insure that everyone was focusing on the same issues. But, unlike other mediations (and the second unusual thing about this mediation), the joint session never concluded: after some joint discussion, the defendant wanted to speak separately with counsel.

For the next hour or so, that separate session occurred: Defendant was using the time to really and carefully review the matter to determine what stance to take. It seems that prior to the mediation, the defendant had concluded not to repurchase the vehicle, basing that decision on a suspicion of “outside influence”; I was told that the plaintiff was associated with others who had had their vehicles repurchased – i.e., “guilt by association”.

When plaintiff’s counsel took great umbrage at defendant’s stance during the joint session and after actually meeting the plaintiff and evaluating her credibility, defendant went into a separate session to rethink its position.

The mediation concluded without a resolution as defendant wanted to speak with others about how best to resolve this matter, i.e., should the vehicle be repurchased, after all?

But, the next unusual thing about this mediation was that plaintiff’s counsel sent me an e-mail (in the form of a poem). It lyrics made me stop and pause. In essence, counsel noted that her client had been victimized and her veracity put into question by assumptions that the defendant had made automatically and without really investigating (i.e., “guilt by association”). Then, when plaintiff refused to accede to the defendant’s demand to settle for a minimal amount of funds, defendant became even more upset. Counsel continued:

“Maybe the problems lies much deeper in the hearts of our system today

the money a plaintiff takes should not just be

a function of what the plaintiff will take to go away

instead it should be tied to the wrong in question

the thing that has provoked the client to seek legal intervention

that way clients may not feel that they have won some pot of gold

but perhaps they will feel that someone cares about the story they have told.”

Have we become too cynical? Are we all just going through a pre-scripted exercise except for the plaintiff who has become an interchangeable fungible? Have we become too detached, to the point that we have forgotten that to this plaintiff, this is not just another file to be dealt with, but it is her vehicle, her time going to and from the repair shop, her aggravation and frustration in having to make car payments every month for a vehicle that she cannot use because it is always in the shop? To her – it is very real, not just another matter to be dealt with in a long day at the office.

Life is real: everyone has a story and everyone needs to tell it and, more importantly, to be listened to. We cannot allow ourselves to lapse into “it’s just another dispute/mediation file” but, instead, must force ourselves to remember that we are all “human” and we are all a part of “humanity.”

. . .Just something to think about.

Postscript; The matter settled a few days after the mediation with Defendant repurchasing the vehicle.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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