Standard I of the Model Standards of Conduct for Mediators is entitled “Self- Determination” and provides that each party is to make a free and informed choice as to process and outcome. Mediation is a voluntary process in which each party is to make her own uncoerced decision.
Standard II of the Model Standards of Conduct for Mediators is entitled “Impartiality” and states among other things that a mediator shall conduct a mediation in an impartial manner and free of bias, prejudice and favoritism. In essence, a mediator shall act in an impartial manner and not act with any partiality or prejudice based on a party’s background, values, beliefs , personal characteristics or performance at the mediation.
I recently conducted a mediation in which I probably violated these rules; yet, the matter settled. It involved the sale of a used car by a dealer in which allegedly the car was not in the great condition represented. Rather, allegedly, it had so many problems, that the plaintiff buyer returned the vehicle to the dealer two days later. However, the dealer would not return the down payment of a few thousand dollars and that was the cause of the litigation.
The sticking point was that the dealer itself claimed to have been defrauded by a third party in an amount exceeding the $50,000 automobile dealer’s bond. Thus, when plaintiff made a claim under the dealer’s bond for her few thousand dollars down payment, the dealer also made a claim for his losses exceeding $50,000.00 and the dealer wanted to be paid most of the bond.
This might have been doable except for the fact that by statute, plaintiff’s counsel was also entitled to attorneys’ fees and costs. This amount, too, was being claimed against the bond and, itself, exceeded the amount of the bond.
As a result, between the claim of plaintiff for her down payment, her attorney’s claim for her fees and costs and the dealer’s claim for the alleged fraud committed on it by a third person ,the claims well exceeded the $50,000 bond and were not going to get any smaller.
So… I sized up the situation and decided that being placid and neutral would not get the matter resolved. Rather, some sense had to be knocked into everyone’s head to make them understand that if they continued the litigation- the attorneys’ would essentially be working for free and while the dealer thought he had a better claim to the money than plaintiff, plaintiff’s counsel would receive the majority of the $50,000 as fees and costs, leaving the dealer with next to nothing, if indeed, nothing! That is, a trial would provide nothing but practice for everyone concerned ending with a nice piece of paper entitled “Judgment” that someone could hang on the wall as a memento of the experience.
To make this point, I pretended anger, raised my voice, argued with the dealer, and was also quite evaluative with the dealer and its counsel. I kept repeating over and over what I saw as the outcome at trial- that the dealer would get next to nothing, if nothing at all, after the plaintiff attorney made its claims for fees and costs. Contrary to the Model Standards, I was not free from bias and was not allowing the parties to come to a voluntary uncoerced decision.
Somehow, the dealer saw the light of day and finally agreed to split the sum with the plaintiff. It took some doing for me to convince plaintiff’s counsel to even agree to give some of the bond money to the dealer. Once he agreed, I then had the challenge to convince the dealer to agree.
He finally did and the parties signed an agreement on how the bond money would be split.
(As a postscript: I later did apologize to the dealer and its attorney for my feigned anger: the dealer responded that it was noted offend it at all; in fact, the client thrived on it and thought I was great!)
The lesson here is that sometimes book learning must be tossed aside in favor of reality and pragmaticism. I could sense that if I conducted this mediation as I normally I do, nothing would have been resolved. Sometimes, the mediator must be the adult in the room and/or knock the parties upside the head with some everyday common sense.
…. Just something to think about.