I co- mediated an ADR session between a capital equipment dealer and a disgruntled customer. The plaintiff was suing the dealer for selling him a 2012 model which was actually a 2009 with major defects.   Insults were exchanged between the two in the courtroom waiting area and continued in the mediation room.  The dealer attempted to control the session which I would not permit him to do.  The customer overwhelmed us with charts, measurements, website pictures, correspondence, and an archaic way of expressing himself that was more appropriate for the late 19th Century. 

Try as I might to maintain order and civility, the level of insults and personal barbs escalated as the disputants discussed their respective positions.  The customer accused the dealer of being a drunk and intoxicated during the transaction.  From drunkard to alcoholic to SOB to idiot, the insults got worse and worse.  The customer's mother-in-law sat between the two disputants with her head spinning as the insults continued.  It was if the two opponents were communicating with each other using the poor lady's ears as a duplex signaling device.  All that was missing were the soup cans and string..  I gave every indication verbally and non-verbally that we were going nowhere fast due to the verbal jousting and bitterness between the two men with the mother-in-law between them.  It was almost comical if not for the tragic possibility that someone might get seriously hurt in the parking lot.

The dealer took exception to being addressed as "Sir."  I could think of worse titles.  The dealer called the customer "Bro" which ignited his umbrage.  These two guys really hated each other. 

We did our best to focus their attention on the issues and separate the personalities from the problem.  Nothing doing.  The disputants then insisted on appearing before the judge which we happily agreed was the best course of action.  The verbal fighting continued as the session ended.  Both parties were convinced that they would win their case once the judge reviewed the facts.  My co-mediator cautioned them to recall his words, "when you appear before the judge, remember what was discussed and transpired in this room.  The judge will not be as indulgent as you may think especially since you did not cooperate during mediation."

I was tired at the end of the session mainly because of the unabated tension and acrimony between the disputants.  As a friend remarked, "these two guys are stuck on age 12 and a half."  This put everything into perspective because we could never intelligently and maturely move toward a resolution let alone a negotiation because of the intense level of emotional immaturity.  This was a great lesson learned for me which is to check the pulse of the participants and determine if the climate of opinion is proper to conduct a meaningful mediation session.  In this situation, a cooling off period was more appropriate since neither party was ready to mediate.  Perhaps, the judge will send the case back to mediation.  On a positive note, the mediation session opened up a preliminary, albeit bitter conversation between two enemies.

 

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