A Bubbly Resolution
by Evelyn Pentikis, Esq.
Standoffs in mediation can feel like a resolution is impossible, but a mediator’s creative “out of the box” thinking can lead to inventing options for mutual gain. In a recent small claims mediation, the parties were at an impasse after a nearly two hours of negotiation. There was no clear pathway to settle, or so it seemed.
“Well, it looks like both of you have dug your heels in, so the only solution is to let the judge decide. I’m not sure what he will decide. It could go either way. What do you want to do?” I asked.
The question led to a long silence.
Then I noticed the brand name across the young plaintiff’s zip-up. A lightbulb went off and when I shared my idea the unexpected happened: hope flashed across both their faces.
During the analysis phase of the mediation, I gathered the facts and paid attention to the interests of both parties. The plaintiff, a young salesman a few years out of college had parked his newly purchased electric car in a parking spot away from other vehicles while he checked on his products in a grocery store. Gone for less than twenty minutes, he returned to his car to find a landscaper blowing leaves into his slick black car. Upon further inspection he discovered scratches alongside the right side of the vehicle and the bumper. He whipped out his iPhone and snapped pictures of the tragedy, including the alleged perpetrator holding a leaf blower. At this point, he was in a heightened state of “WTF,” intensified by a witness sitting in her car shaking her head and saying, “I’m glad I’m not you.”
During the planning stage of the mediation, I built trust among the parties and looked for solutions. I told the young man that I was impressed with the gathering of evidence considering how upset he had been. Though he admitted in retrospect he could have taken better pictures. I learned he was a salesman who needed a car for his job; he was a twenty-four year old still living at home.
I gave credit to the owner of the commercial landscaping business, a young dad of triplets, who came to the table with compassion and a willingness to make things right despite the lack of definitive evidence. The owner had a compelling defense which rested on his twenty years of experience supervising a crew of leaf-blowers. He questioned the scratch, drew upon physics to question bumper damage, and made a good point about the potential for preexisting scratches. From the beginning of making his case, he acknowledged the plaintiff’s perspective and interests. This was instrumental in moving toward a settlement.
The initial claim was for five-thousand dollars, a number derived from a detailing and body-shop estimate. The plaintiff had an attorney, who let the parties chat before the mediation. This also proved helpful. When they finally came to the table, they were a thousand dollars apart. The defendant offered $1500. The plaintiff was at $2500. The plaintiff was stuck on the high cost of a rental car, an estimate for a Maserati, the equivalent type of rental. The plaintiff conceded maybe a Maserati was a bit of a reach. This was a small win. The defendant was hesitant to offer more because he felt he wasn’t liable for any of the damage.
In the final discussion phase, I looked past the numbers to identify the parties’ interests. Neither party wanted to go through insurance, which is of itself a common theme in small claim disputes. Besides, the incident had occurred eight months prior–it may have been too late to file a claim. They both were antsy to get this dispute behind them.
I saw the merits of both sides. I appreciated the defendant saying that he would “feel badly” if the judge threw out the case, and recognized that he could be accountable for the full amount. I empathized with the plaintiff saying if the judge dismissed the case, he would be satisfied he gave it his all. I also understood the plaintiff had to answer to his parents about the cost of the repair and the hiring of an attorney.
“Mediations aren’t always
about meeting in the middle”
The openness of the discussion at the impasse, the calm and respective demeanor of both parties made me want to come to an amicable solution. Both parties didn’t want to go before the judge; neither wanted to move their number any more, with each feeling like they were compromising beyond what was fair. I reminded them that mediations aren’t always about meeting in the middle. This resonated with them.
Near the end of the discussions, the attorney had to step out to a virtual meeting allowing me to sit with the parties while we waited for counsel to return. This turned into an opportunity. We kept talking. I threw out $1800 as a new number. The plaintiff said, “$2000 and cover my rental.” The defendant couldn’t get there.
Conversation moved away from the dispute. I asked the plaintiff about his background-where he went to college, what he majored in, how he got into sales. I shared I’m a mom of two college boys on the same track who were obsessed with his soda brand–Olipop. The defendant shared he was a father of preteens. He had never heard of Olipop.
That’s when the idea hit me. I turned to the plaintiff: “How bout you throw in a dozen cases of Olipop.”
Both parties went silent. I did the math, incorrectly. The plaintiff asked the defendant, “What’s your address, I’ll send you a dozen cases, all the flavors and then some, right now.” He flashed his phone with his corporate account and placed items in a cart.
The defendant raised his eyebrows, “Right now?”
I saw the opportunity to begin drafting the settlement. “You have a check with you?”
“Yes,” the defendant said. He retrieved his checkbook, muttering, “Am I really going to get a dozen cases? It’s really $3 a can?”
“Okay, great. We’re doing $2000 + a dozen cases of Olipop,” I persisted.
“No, don’t put that in the settlement, I don’t want anyone looking it up and seeing that,” the defendant insisted.
“Fine. But we have a deal?” I asked.
Both parties nodded.
While I quickly wrote the agreement, my hand a little shaky under the pressure of drafting the correct language to end the standoff, the plaintiff sent the soda cases. Without delaying further, I pushed the completed settlement form in front of them.
“Sign here,” I instructed.
The attorney returned from his conference just then, a look of relief across his face. It was almost lunch. Noone wanted to wait for the judge to get to the case, nor did they want to go to trial.
I wished both parties well and commended them on their willingness to hash out the terms. The only bummer was that I had to turn down the offer of a dozen cases of my kids’ favorite beverage, because that would have been unethical as a neutral party.
Right?
