ARBITRATION AND THE LEMON LAW
(An Alternative or the Gauntlet Extended)
|
|
If the neighbor's Pekinese decides to scare off bad guys at 2:00AM in the morning, and does this every
night, and you can't persuade your neighbor to correct the situation, perhaps
mediation or arbitration is the answer. After all, going to court seems a bit
much, and committing crimes against the little $%%$# is probably counter
productive. We say this by way of introducing the fact that your long battle
against the Fords or Mercedes' of the world isn't at all like getting the
neighbor's lap dog to be quiet. There are situations where arbitration or a
dispute resolution process is entirely appropriate. However we want to say it
right up front, after over 6000 lemon law cases we have almost never
seen a case where the vehicle owner benefited from arbitration with a
manufacturer.
|
|
It is an unequal battle that is but one step in a long war. The outcome is inevitable. To engage
in this war is equivalent to a middle-aged, non-athletic accountant, dedicated
to ribs and beer stepping into the ring with the young Muhammad Ali. You won't
even see that sweet left hook coming. Everything is on the side of the
manufacturer, even the arbitrators in some circumstances.
|
|
Sun-tzu in the "The Art of War" wrote, "Generally in warfare: if ten times the enemies strength, surround them; if
five times, attack them; if double, divide them; if equal, be able to fight
them; if fewer, be able to evade them; if weaker, be able to avoid them." I
hate to be the one to break the news but consumers very definitely fall in the
latter two categories. Consumers going into arbitration have fewer soldiers and
are certainly weaker.
|
|
In California two things level the playing field.
A strong lemon law - the Song Beverly Act
-and very experienced lemon law attorneys. We should have these things,
after all California has more cars on the road than any other state.
|
|
Lets look at a definition of Arbitration:"The process by which the parties to a dispute
submit their differences to the judgment of an impartial person or group
appointed by mutual consent or statutory provision."very few exceptions you can forget impartial
and mutual consent.
|
|
If Saddam Hussein offered to arbitrate detente
between Islam vs. Israel, I for one would have problems with the impartiality
of his decision. Mr. Hussein will never be found on the moral high ground.
Arbitration can be similarly unequal. Fairness, equity and the proper application
of the law are what should occur in arbitration. If you want the consumer to
accept arbitration that is sponsored by an automobile manufacturer, or where
the arbitration organization receives most of its business from automobile
manufacturers, then I give you the same answer Israel would give Saddam.
"Forget it!"
|
|
There are other factors that unfortunately work
against arbitration being an equitable solution for consumers with lemon
vehicles.
|
|
Training:
Professional arbitrators are not necessarily trained
in the lemon law; in fact it is far more likely that they have no training in
the subject at all. Arbitrators are rarely judges or lawyers. Generally the
arbitrator is trained in so-called people skills, how to negotiate and perhaps
a smattering of legal knowledge.
|
|
This is a subject area where a little knowledge is
very definitely dangerous. Perhaps the arbitrator imagines he or she can get by
on common sense and honesty. If it were true the consumer would seldom lose a
case.
|
"Finally, Sandy, someone's going to listen." "They listened all right, but not to me!"
|
Preparation:
Are consumers properly prepared for arbitration? How could they be, even if they read the
Song Beverly Act, or anything else? Even with all the facts, consumers don't
know what to expect. Consumers aren't all lawyers. The manufacturer will send a
lawyer trained to handle this sort of thing. The manufacturer's lawyer may lie;
that's correct, lie. There's not much consumers can do about that except feel
miserable. Whether the manufacturer
s representatives lie or not, they will
present a blizzard of bizarre possibilities, all designed to confuse and dilute
the consumer's case. There is light at the end of this particular tunnel,
however. In California, arbitration is not binding; it's just another waste of
time. When the ruling is handed down, and the manufacturer is permitted another
repair attempt, consumers need not comply, consumers can get a lemon law
attorney and put an end to the endless games manufacturers play.
|
Cost:
Even if the arbitration is paid by the state, what is often ignored is the lost time
from work, expenses for experts where expenses are required, copying, and
running around to get copies of missing paperwork. Then there is the time spent
preparing an oral argument, trying to figure out how to answer the
manufacturer's defenses. Of course, if the manufacturer runs the arbitration,
this is no arbitration at all.
|
How long does it take? :
If consumers get this far they have often been
trying to get the dealer/manufacturer to do something about their car for many
months, even years. Arbitration adds another 30-90 days onto to the
process. If the car is dangerous to drive what do consumers do? Are they supposed to endanger themselves and their
passengers in an attempt to finally get the problem resolved? Should they do
this, especially when there is a better than even chance that more delay will
be added into the process by awards of additional repair attempts? This is
hardly a fair and equitable solution to the problem.
|
A little known fact:
All major vehicle manufacturers have networks of
dealerships all across the country and even the world. Manufacturers enter into
contracts with dealerships. These contracts affect every aspect of sales,
maintenance and repair of their vehicles. More frequently than the public ever
discovers there are disputes between dealerships and manufacturers. Dealerships
want uniform arbitration procedures and laws to help them deal with these
disagreements. Guess who fights any sort of arbitration with dealerships?
Exactly! The manufacturers. And yet, the manufacturer touts the benefits of the
arbitration/dispute resolution process when it comes to consumers. What's wrong
with this picture?
|
If the manufacturer wants arbitration, it's not
good for the consumer:
Arbitration does not take place on a level playing
field. At Norman Taylor & Associates we have seen enough cases to know
this. The two sides have very different goals. Consumers simply want vehicles
that work as advertised. The manufacturer does not want to give consumers a
refund or replacement for their defective car and then be stuck with a vehicle
that is worth half its current value, and may be impossible to fix or to sell.
From the manufacturer's point of view they have every incentive to make the
entire process so difficult that consumers will give up and go away. Don't do
it, Mr. and Mrs. Consumer. With professional help you can prevail. Absolutely
nothing beats winning a hard fought battle when you are right.
|
Click here for the printable version of this article
(Acrobat Reader required)
|
Lemon Law Wins
Lemon Law: Rights & Duties
