Three Strategies for Making the Most of a Mediated Settlement
Oct 12, 2021, 09:00 AM by Juan Herrera, Vice President, Dispute Resolution Programs, BBB National Programs
With more than 40 years of mediation experience, BBB AUTO LINE, a division of BBB National Programs that resolves disputes between consumers and vehicle manufacturers, may have seen – and heard – it all.
There was one car owner, not too many years ago, who wanted a new luxury vehicle via her warranty because she was convinced that she heard the brakes squeak upon every push of her brake pedal.
Cases such as this end up being mediated with an outcome that lands someplace between the wishes of the manufacturer and the vehicle owner. And while often neither party walks away completely happy, rarely are both parties completely disappointed. After all, their voices were heard. And when the chips fell, both parties moved on with their business and personal lives.
The first step in the arbitration process, mediation, is a hallmark of the BBB AUTO LINE program. From 2015-2020, 65% of all eligible manufacturer claims were resolved via mediation between the parties.
Over the years, we have learned that success in mediation comes as much from utilizing emotional intelligence as it does from knowing the nuts and bolts – and the legalities – of the mediation process. Here are three strategies for making the most of a mediated settlement.
1. Recognize Different Points of View
One common equivalent in nearly all mediation cases is the need for everyone in the room to recognize that theirs is not the only valid point of view.
The vehicle owner is passionate about the vehicle they have chosen to drive. Owning a vehicle can be as much as – or more – a personal brand statement as it is a functional transportation decision. Some people even “name” their car.
On the other side of the table is the manufacturer. While vehicle manufacturers always balance their need to provide quality customer service with more pragmatic internal objectives, we have come to recognize that the manufacturer’s heart is in their product as much as their head.
Recognizing and translating this emotional investment on both sides of the mediation table is essential.
To assist in our assessment of the merits of a consumer’s dispute, BBB AUTO LINE will always endeavor to provide the manufacturer with some context about the consumer’s experience. This context will include details of the relevant lemon law, including a number of repair attempts, or days out of service. It may also include why the consumer chose a particular vehicle, their history with the brand, how they have been impacted because of the problems, and how they have attempted to work with a dealership towards a successful resolution.
Our program is not a one-size-fits-all model, so case assessment is essential to ascertain whether mediation or arbitration might be the best fit for the desired outcome. Often, we provide both. The hope is that through robust education, both consumers and vehicle manufacturers can make an informed decision, void of emotions, about how best to achieve optimal results.
2. Establish Various Approaches to Shift Perspectives
As dispute resolution professionals, we know that disputants may routinely slip into a reality in which it is challenging to appreciate the perspectives of the other side, or they may come to the table with a pre-determined solution they seek without a full understanding of what it entails. Either way, their mind is relatively closed to discussion, and we need to open it.
BBB AUTO LINE mediators focus on finding ways to strategically highlight and share multiple dimensions about a dispute with each side, aiming to view the dispute through a collaborative lens. For example, we might explain to the consumer the difference between local dealership and corporate vehicle manufacturer, or that a warranty is a promise to repair the vehicle, but not a promise that it will be free of defects.
Often, our conversations with consumers address the requirements of a state’s lemon law. If the consumer comes to the table not interested in mediation, determined to move to arbitration, we can help the consumer understand the questions an arbitrator will raise and then help bridge that situation with the manufacturer to avoid escalation to arbitration or to court, which is a final option that is always available to consumers in our program.
We will share with the manufacturer’s representative the consumer’s perspective of the case and why they believe their desired outcome is appropriate. We might also touch on key requirements of the relevant lemon law to share the consumer’s lemon law analysis and to highlight areas of arbitrator discretion. We often support this perspective shift by using a series of preparation discussions privately with each party before a mediated teleconference with both parties present.
3. Focus on Neutrality and Building Trust
Particularly when a conflict concerns a basic human need like safe, reliable transportation, successful mediation can only be accomplished when the mediator is able to establish trust with both parties.
Our mediators spend time getting to know the needs of the consumer as well as the manufacturer, with each step of the process intentionally designed to keep the mediator in a neutral role, down to the location where in-person mediation takes place.
Though challenging, given our 40-day case timeline, we set out to intentionally build rapport with each disputant to encourage trust in us and our process. We spend considerable time describing our role and then work to help each party come to a better understanding of the other’s position, all within the specific parameters of our program.
You cannot do the work of building a safe and professional forum for dialogue without first building rapport and trust. Creating a safe and professional forum for dialogue has led to tens of thousands of BBB AUTO LINE mediated settlements – more than 14,000 in 2020 alone.