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<xTITLE>Expect the Unexpected</xTITLE>

Expect the Unexpected

by Phyllis Pollack
February 2012

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

One of the more memorable movie lines is from Forrest Gump (1994) when Gump comments “My momma always said, “Life was like a box of chocolates. You never know what you’re gonna to get.” ”

Mediations are like that, too; as a mediator, I never know what to expect. I say this because I had two mediations recently that turned out far differently than I expected. Both involved automobiles. In the first, the plaintiff – I will call her Jane Doe –purchased a used vehicle from a dealership – I will call it ABC Dealership – which sold both new and used cars. Ms. Doe had a continuous problem with steering – it was quite difficult to turn the steering wheel and when she did so, it whined. She took it back to the dealership seven (7) times for repair. . . and it was still not fixed. Believing that enough is enough, she sued. Under the particular statute involved, she was entitled to diminished value i.e. the difference in the value of the vehicle as represented (i.e. without the steering wheel problem) and the vehicle as it was in actuality (i.e. with the steering wheel problem). This sum probably amounted to a few thousand dollars. But, at the mediation, the owner of the dealership proposed an “out of the box” solution to take her car in a generous trade-in, for a new vehicle (that has a generous manufacturer’s warranty) at a reduced price, giving plaintiff incentives and the best financing obtainable in light of Ms. Doe’s credit. While no doubt, ABC Dealership will probably make some money on this deal (i.e. What’s In It For Me!), it will probably cost the dealership more than the few thousand in cash representing the diminution in value. It will also engender goodwill as it is far more than what the statute requires. Clearly, the owner of ABC Dealership was looking for a way to resolve this matter to plaintiff’s satisfaction – one that would not leave a bad taste in Ms. Doe’s mouth.

In contrast was my other mediation – again involving an automobile. The plaintiff – whom I will call Sally Roe – leased a vehicle for three years. During that period, she brought it to the dealership for different things; one or two of her complaints were at issue twice. At the end of the lease, she decided to purchase the vehicle. Soon thereafter, she brought the vehicle into the dealership once more to have other issues resolved. At this point, the vehicle was outside of the manufacturer’s warranty and so Ms. Roe did not bring it to the dealership anymore. Approximately 18 months after she purchased the vehicle at the end of the lease, she sued the manufacturer claiming the car to be a “lemon”, alleging defects that were complained of to the dealer once or perhaps twice, years ago.

Part of my job as a mediator is to provide doses of reality and to manage expectations. So, I discussed the jury instructions that would be used at trial and the fact that a jury may question her credibility and/or motivation since she voluntarily purchased the vehicle at the end of the lease. (i.e. If the vehicle was so bad, why didn’t she simply walk away from it at the end of the lease?)

My doses fell on deaf ears. Evidently, her attorney had counseled her that this was a good case to take to trial, and if the manufacturer was not willing to repurchase the vehicle, then the matter should be left for a judge and jury to decide. Thus, when I proposed the manufacturer’s cash offer to Ms. Roe, her response was simply that it was time to go to trial, and the mediation was over. She would not counter or negotiate for anything less than a repurchase.

Two strange mediations, neither ending the way my training and experience would have led me to believe.

The teachable moment is so obvious that it sometimes escapes me: Mediation is “like a box of chocolates, you never know what you’re gonna get.” Or, be flexible and ready to go with the flow!

. . .Just something to think about.


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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