Common Mistakes in Lemon Law Mediation and How to Avoid Them

Lemon law mediation fails for predictable reasons. The cases that leave the table without a resolution are rarely the ones where the gap was truly unbridgeable. More often, they are cases where one or both sides made avoidable errors in preparation, presentation, or negotiating approach. Having seen these patterns repeat across many sessions, the following mistakes stand out as the most common and the most fixable.

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Arriving Without a Fully Modeled Damages Number

This one affects both sides with roughly equal frequency. The Song-Beverly restitution formula is set by statute, Cal. Civ. Code § 1793.2(d)(2), and both sides should arrive at mediation having done the math. That means the full purchase price, all collateral charges, applicable finance costs, and the mileage offset calculated from the first repair attempt odometer reading.

When counsel on either side has not modeled this number in advance, two things happen. First, the early part of the session gets consumed by arithmetic that should have been resolved before anyone sat down. Second, and more importantly, positions tend to be anchored to round numbers or rough estimates rather than the actual statutory calculation. That makes it harder to identify where the real gap is and easier for the session to stall over a disagreement that the statute already resolves.

The fix is straightforward: do the math before you arrive, bring your documentation, and be prepared to walk the mediator through your calculation if asked.

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Conflating the Civil Penalty With Actual Damages

The civil penalty under Cal. Civ. Code § 1794(c) is available when the manufacturer's failure to comply was willful, and it can add up to two times actual damages to the recovery. It is a meaningful part of the case in the right circumstances. It is also one of the most frequently misused arguments in lemon law mediation, on both sides.

Plaintiffs' counsel sometimes present the civil penalty as effectively automatic, particularly in cases involving technical service bulletins for the claimed defect. Defendants sometimes dismiss the penalty argument entirely even when the documentary record presents a genuine willfulness question. Neither approach reflects how the penalty actually works. Willfulness is a fact-specific inquiry, and courts have made clear that the existence of a TSB does not automatically establish that a manufacturer acted willfully in failing to repurchase a specific vehicle. See Oregel v. Am. Isuzu Motors, Inc., 90 Cal. App. 4th 1094, 1104-05 (2001).

At mediation, overstating the penalty argument damages credibility with the mediator. Understating it when the record genuinely supports it leaves money on the table. The right approach is a candid assessment of what the documentary record actually shows and a penalty argument calibrated to that record, not to the maximum theoretical exposure.

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Treating the Mediator as an Audience Rather Than a Resource

Some counsel approach lemon law mediation the way they approach oral argument: they present their case, emphasize their strengths, and wait for the mediator to carry their position to the other room. That is a significant misuse of the process.

An experienced lemon law mediator is not evaluating the case for purposes of rendering a decision. They are trying to understand where the real dispute lies so they can help the parties close it. Counsel who engage with the mediator candidly, including about the weaknesses in their own case, give the mediator the information needed to have productive conversations in both rooms. Counsel who present only their best case give the mediator less to work with and often get less in return.

This does not mean disclosing litigation strategy or waiving privilege. It means being honest about the repair history, the fee record, the strength of the penalty argument, and the client's actual priorities. Mediators who know where the real flexibility is can find creative paths to resolution that positional presentations miss entirely.

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Inadequate Client Preparation

This mistake shows up more often on the consumer side but is not limited to it. Lemon law clients frequently arrive at mediation expecting something closer to a hearing than a negotiation. They want to explain what they went through, they expect the mediator to respond to their frustration, and they are sometimes genuinely surprised when the session focuses on numbers rather than narrative.

Counsel who have not prepared their clients for how mediation works spend a disproportionate amount of the session managing client expectations rather than negotiating. That is time that cannot be recovered once the session is underway. A thirty-minute conversation with the client before the mediation date, covering what mediation is, what it is not, and what a successful outcome looks like, consistently produces better results than arriving cold and adjusting in the room.

On the defense side, the equivalent problem is a corporate representative or in-house contact who has not been briefed on the case and cannot engage meaningfully when the mediator asks about the repair history or the warranty claim record. Representatives who are present but uninformed slow the process and signal to the mediator that the defendant is not genuinely engaged.

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Coming Without Realistic Authority

Few things end a lemon law mediation faster than a lawyer who cannot move without a phone call. By the time a case reaches mediation, both sides generally have a reasonable sense of the settlement range. If defense counsel has not secured authority that covers that range before sitting down, the session is unlikely to produce a resolution regardless of how well everything else goes.

The same issue arises on the plaintiff's side when counsel has not discussed a realistic bottom line with the client in advance. A client who has not thought through what they are actually willing to accept can derail a session that was otherwise heading toward resolution.

The solution is a pre-mediation conversation with the client or decision-maker that results in a genuine mandate: a range the lawyer is authorized to work within, a sense of what the other side's likely positions are, and a clear understanding of what outcome the client is actually trying to achieve.

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Letting the Fee Issue Derail the Vehicle Resolution

Under the AB 1755 framework, the limited pre-mediation work product means defendants often arrive at early mediation with arguments that the fee component should be modest or resolved separately by motion. That argument has some structural basis given the constrained pre-mediation discovery. Cal. Code Civ. Proc. § 871.26(b)-(c). But allowing the fee dispute to block agreement on vehicle restitution is a mistake for both sides.

The more productive approach is to resolve the vehicle value first and then address fees, either through continued negotiation or by agreeing to a briefing schedule for a fee motion. Letting a disagreement about fees prevent resolution on the underlying claim extends the litigation, continues to accrue fees, and benefits neither party. The mediator can often help structure a two-step resolution that addresses both issues without letting one hold the other hostage.

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Waiting Too Long to Mediate

This last one is less about what happens in the room and more about when to schedule the session. Song-Beverly cases tend to resolve for similar amounts whether they settle early or late, but the total cost of resolution, including attorney's fees on both sides and the investment of time and attention the case requires, is substantially lower when mediation happens early.

Under the AB 1755 framework, the mandatory mediation window of 150 days from the answer is designed to capture this efficiency. Cal. Code Civ. Proc. § 871.26(d). For cases not subject to that framework, the same logic applies even without the statutory deadline. A case that could have resolved at mediation eight months ago for the same number it resolves for today simply cost both sides eight months of unnecessary expense to get to the same place.

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Most of these mistakes share a common root: treating mediation as a continuation of the adversarial litigation process rather than a structured opportunity to resolve a dispute efficiently. Lemon law cases are well-suited to mediation precisely because the framework is clear, the damages are calculable, and the incentives for resolution are real on both sides. The cases that fail at mediation usually do so because one or both sides did not come prepared to take full advantage of that opportunity.

If you are preparing for a Song-Beverly mediation and want to discuss the process, we welcome the conversation.