Sued by JDB, filed answer + MTC arbitration. Court ordered Mediation. Now what?

[Mistymouse4590]

The court ordered mediation in late August in response to my answer (denied everything + arbitration as affirmative defense (plus other defenses)) and MTC arbitration. What's the best strategy now? Should I tell the mediator that I don't wish to mediate and I will be filing an arbitration case? Or should I move forward with the arbitration case even before the mediation so that I can say it's already in progress when the mediation date arrives (I have not yet filed the arb case). Or maybe I should contact the JDB and let them know I'm filing the arb case? 

Not sure what the best strategy here is, and if I have to go through with the mediation, how to handle it and what to say. Never done mediation before (this will be in-person, not virtual). 

Thanks in advance for the assistance!

[BackFromTheDebt]

I am not familiar with Arizona courts.  So I don't know how they generally handle MTCs.  I don't know if the MTC would be handled before or after the mediation.

That being said, there is a general rule of thumb to follow for mediation.  

In most states, you have to go through with the mediation.  If this is different for AZ, I hope one of our Arizona posters will chime in.  

The point of mediation is the mediator is trying to get you and the other party to agree to a settlement.  

What happens if the only thing you agree to is arbitration?  What if you sit there and say the only settlements you will agree to would be dismissal of the case or else arbitration?  They can't force you to accept a settlement.  

[nobk4me]

Right, they can't force you to settle.  But they might try to put a lot of pressure on you to do so.

You need to stick to your position, you want private contractual arbitration.

I think @Harry Seaward and @Goody_Ouchless are in AZ.  Maybe they have some insights?

 

[Goody_Ouchless]

Depending on the particular court, mediation appears to be required. It used to irritate my lawyer that my particular court insisted on it, while others would let it slide. If mediation happens before your MTC is ruled on, just attend and explain the situation, and suggest to the opposing lawyer that he dismiss the case in order save everyone time. The mediators are typically third year law students who probably will know less about this than you. It may be a nice opportunity to educate the meditator about this aspect of law. Anyway, AZ law, regarding arbitration is quite clear and I don't believe anyone has failed, even in the rare case where a bad ruling has to be appealed.  

[YoRocky]

Offer them a $1. This is known as the '$1 settlement deal'. 

How it goes is like this: You type up a settlement offer. I mean a legit offer. I am half joking about offering $1. (That woudl be legendary)

On your offer you name your terms. Something along the lines of , In acceptance of my $1 offer, you agree to dismiss without prejudice, leave me the f* alone. 

You provide a place for yourself, them, and the mediator (witness) to sign.

Now say the meeting comes and then you meet Big Bad Bank renta-lawyer. He will no doubt mock you for this ridiculous offer and tell the mediator its impossible to deal with this. I ask for help to be 'more reasonable'.

If the mediator starts to 'pressure' you, well straight up thats a conflict of interest. But just refer back to your offer in writing. Be stubborn about it cause this is YOUR LIFE and money they are trying to influence

And remember something very important: The mediator is a witness to your case. The old 'anything you say can be used against you in a court of law' applies here. In other words, everything you say, behave, and submit in writing (like your offer) is witnessed by the mediator. So take care what you say (admit/deny) and your approach.

Your opponent can solicit them as a witness (as can you) and so it can be framed to use against you. In short, when in court defending yourself,  your walking in minefields!

As your offer and their 'more reasonable' counter is talked about it, you SHORTCIRCUIT the discussion by refering back to your MTC. You simply say, as we cant reach agreement today in this venue, I am confident we will do much better in arbitration. Then you reiterate the legal points that you submitted to you. Neither one has bother to study your last paper, so you are in control again. 

In fact id probably give them a copy of it. And always redirect the topic to THAT paper. Always control the meeting with paper, and more paper. Its what this kabuki theater is all about.

Then you close the whole thing with telling them you look forward to hearing about the judge has to say at xyz date in the future. 

I think thats all you need to do really. Appear reasonable, but stand strong and firm in your rights. 

And also get angry  with these clowns have wasted SO MUCH TIME AND EMOTIONAL ENERGY. I know first hand the life sucking power of this trail. And they expect to get paid for it?? They should be paying me!

So, STAND UP FOR YOURSELF, FACE THE MEANIES, AND GET BACK TO THE PARTY!

 

 

 

[BV80]

6 hours ago, YoRocky said:

Offer them a $1. This is known as the '$1 settlement deal'. 

How it goes is like this: You type up a settlement offer. I mean a legit offer. I am half joking about offering $1. (That woudl be legendary)

On your offer you name your terms. Something along the lines of , In acceptance of my $1 offer, you agree to dismiss without prejudice, leave me the f* alone. 

You provide a place for yourself, them, and the mediator (witness) to sign.

Now say the meeting comes and then you meet Big Bad Bank renta-lawyer. He will no doubt mock you for this ridiculous offer and tell the mediator its impossible to deal with this. I ask for help to be 'more reasonable'.

If the mediator starts to 'pressure' you, well straight up thats a conflict of interest. But just refer back to your offer in writing. Be stubborn about it cause this is YOUR LIFE and money they are trying to influence

And remember something very important: The mediator is a witness to your case. The old 'anything you say can be used against you in a court of law' applies here. In other words, everything you say, behave, and submit in writing (like your offer) is witnessed by the mediator. So take care what you say (admit/deny) and your approach.

Your opponent can solicit them as a witness (as can you) and so it can be framed to use against you. In short, when in court defending yourself,  your walking in minefields!

As your offer and their 'more reasonable' counter is talked about it, you SHORTCIRCUIT the discussion by refering back to your MTC. You simply say, as we cant reach agreement today in this venue, I am confident we will do much better in arbitration. Then you reiterate the legal points that you submitted to you. Neither one has bother to study your last paper, so you are in control again. 

In fact id probably give them a copy of it. And always redirect the topic to THAT paper. Always control the meeting with paper, and more paper. Its what this kabuki theater is all about.

Then you close the whole thing with telling them you look forward to hearing about the judge has to say at xyz date in the future. 

I think thats all you need to do really. Appear reasonable, but stand strong and firm in your rights. 

And also get angry  with these clowns have wasted SO MUCH TIME AND EMOTIONAL ENERGY. I know first hand the life sucking power of this trail. And they expect to get paid for it?? They should be paying me!

So, STAND UP FOR YOURSELF, FACE THE MEANIES, AND GET BACK TO THE PARTY!

 

 

 

 

6 hours ago, YoRocky said:

And remember something very important: The mediator is a witness to your case. The old 'anything you say can be used against you in a court of law' applies here. In other words, everything you say, behave, and submit in writing (like your offer) is witnessed by the mediator. So take care what you say (admit/deny) and your approach.

That is not true.  Settlement negotiations are not admissible in court.   The mediator simply informs the court if a settlement is reached, not reached, or that a party acted in bad faith.  A $1 offer may just fit the bill as bad faith. 

Stop offering your opinions.  Either read the applicable rules for a particular state or stay out of it. 

[BackFromTheDebt]

Where to begin?

There is a case to be made for trying to trap another party into FDCPA violations.  This rarely works, and is very dangerous.  This is a double edged sword and can come back to bite you.  
 

What the heck is the point of offering to pay $1 for a dismissal without prejudice?   Sorry, but that makes absolutely no sense whatsoever.  If they accept the offer, they can turn around and file suit again. Usually they don’t, but they could. I have had several law firms run away before suit is filed when I mentioned arbitration. The case just went to another law firm. One case wound up with the second lawyer at the fourth law firm before getting a lawyer who would actually push the case.  So I took the case deep into arbitration and they accepted my settlement offer — $0 and dismissal with prejudice — just before the hearing.  
 

The suggestion of @Goody_Ouchless to offer $0 for a dismissal WITH prejudice actually makes sense.  If they accept,  case closed.  If not, take them to arbitration and they will probably run away.  Case closed.  
 

As I have pointed out before in answer to a certain poster, it is almost always better to see what someone else has done to win and follow their lead.  Arizona debtors have been winning with the strategy of sticking to one’s guns in mediation and going to arbitration.  Why abandon a winning strategy?

 

[Mistymouse4590]

Thanks to everyone for the helpful responses. Not sure what will happen with my MTC, but for now, I'll plan to show up to the mediation prepared to admit nothing and stick to my guns regarding my desire to arbitrate. 

On another note, is there any benefit strategically to filing the arbitration case prior to the mediation? 

[BackFromTheDebt]

9 hours ago, Mistymouse4590 said:

Thanks to everyone for the helpful responses. Not sure what will happen with my MTC, but for now, I'll plan to show up to the mediation prepared to admit nothing and stick to my guns regarding my desire to arbitrate. 

On another note, is there any benefit strategically to filing the arbitration case prior to the mediation? 

I have a hard time answering that question.  
Over the years the “preferred” answer has changed a few times.  I never filed between filing of the case and the court ruling. I did file preemptively a few times, but those were special cases. 
 

For a while the advice was to file before the MTC hearing to prove to the judge you are serious.  
 

These days the common advice seems to be to wait until after the hearing.  
 

I realize that is not helpful.  

[Harry Seaward]

14 hours ago, Mistymouse4590 said:

Not sure what will happen with my MTC, but for now, I'll plan to show up to the mediation prepared to admit nothing and stick to my guns regarding my desire to arbitrate. 

Just an FYI, the mediator is going to hear the plaintiff's story and ask you how much you can pay today.  They are not there to settle the case on the merits, or figure out all of the little nuances of debt collection violations.  Plaintiff's lawyer, and quite possibly the mediator, will also tell you how expensive and time consuming arbitration is going to be for you.  They will probably tell you mediation is the same as arbitration.  While in theory, it may be, in practice it's anything but.  They will try to scare you into settling, which is exactly what they get paid to do.  Politely decline and insist on the arbitration "from your card agreement".

I haven't really followed any court cases for a long time, but there was a spell where some courts were denying our MTCs.  It was successfully appealed at least once(<----- click that link to read the appeal ruling), so worst case, as Goody said, you may have to appeal to get your MTC granted.

14 hours ago, Mistymouse4590 said:

On another note, is there any benefit strategically to filing the arbitration case prior to the mediation? 

It's better to have a court order (i.e. granted MTC) when you start arbitration.  AAA/JAMS have been known to refuse to take debt collection cases with certain JDBs without a court order.

[Mistymouse4590]

Just wanted to post an update in case anyone is having fun following this: 

After the court ordered mediation, the JDB filed a response to my MTC as well as a motion to "Waive Appearance of Real Party in Interest". In their response to my MTC, they state, 

 

 

And then the motion to Waive Appearance of Real Party in Interest, they argue that a representative of the plaintiff being present is not necessary for the parties to reach resolution, and since the purpose of mediation is to resolve the case prior to trial, that can be accomplished with plaintiff's counsel appearing on behalf of plaintiff at mediation. And counsel has full settlement authority for plaintiff and is able to resolve the outstanding issues at the mediation without involvement from the a representative from Plaintiff's company.  "Therefore, the Plaintiff requests the Court to waive the appearance of the real party in interest at the mediation in this matter."

Seems like they have no issue with arbitration. And should I respond to the Motion to waive appearance of real party in interest? Would love some feedback and thoughts! Thanks everyone. 

[kittycat]

Arizona case law is consistent with staying, rather than dismissing, the action pending the completion of private arbitration.

So, there really isn't any argument against a stay.

Since they have no objection to your motion to compel, the court will very likely grant your motion and issue an order.  The order will probably come sooner than if the Plaintiff had opposed the motion.  Does the Plaintiff's lack of objection to private arbitration mean that the Plaintiff will promptly pay the arbitration costs and participate in the arbitration process without delay?  Perhaps.  There is only one way to find out.

Regarding the motion to waive appearance of real party in interest, Arizona rules require that the actual party (or, in the case of a company, a company representative) appear at the mediation hearing.  The idea being that only the party can decide what compromise or agreement could finally settle the case.  An attorney typically has to bring any offer to their client for approval, and can't finally settle the case until they consult with their client first.  So, a mediation without the client present is likely to be a waste of time if the actual decision making party is not present.

That being said, it is typical in debt cases in Arizona for the Plaintiff to file a motion to waive this appearance, and the motion is almost always granted.

If you don't want to go to the mediation hearing, you could file a response which argues that given that the Plaintiff filed a response to the motion to compel private arbitration in which they expressly stated that they do not oppose private arbitration, and given that private arbitration is inconsistent with court mediation, that the Plaintiff's motion is moot and should be denied and the mediation hearing vacated.

But perhaps you want to go to the mediation hearing to see if an agreement can be reached.  It almost never happens, but you'll have to decide for yourself.

[Mistymouse4590]

Next update: my motion to compel private arbitration was granted. and the case is stayed.

Mediation was vacated (does that mean I don't have to submit the rule 121 disclosure statement?) Plaintiff already submitted theirs to me, including lots of original loan records with their disclosure statement, including chain of title documents, a notice of assignment and a list of witnesses they expect to call at trial.

I think it's now time to file the initial arbitration paperwork immediately. Is it time to propose a settlement offer?