This thinly disguised actual mediation took place two years ago so my recall isn't perfect. AND I have no expertise in the ADA. I help attorneys help their clients settle litigation. That being said this is what I DO recall however.

The defense attorney acknowledged there were statutory civil "fines" of $4,000 (?) per violation (?).

The defendant acknowledged he had not complied with the requirements of the ADA.

The plaintiff's attorney claimed the pertinent case law did not require the plaintiff to enter the premises to prevail. It was enough that he drove by, SAW there was no access and made the decision not to enter the premises. The plaintiff's attorney also claimed it was no defense for the place of business to have brought itself into compliance after suit was filed.

The plaintiff claimed that he was looking for a motel to say in, saw there was no access and drove on.

The defense attorney did not contest the plaintiff's understanding of the law.

Given these "facts" and this understanding of the law, the defendant had two choices: proceed to trial on a case his own attorney did not think he could win or settle for the cost of defense.

If by "touchy feely" you refer to my attempt to find a way to form a relationship of trust and confidence sufficient to assist a business man make a difficult cost-effective choice when his feelings of exploitation might otherwise cause him to spend more on attorneys' fees than he could possibly gain by defending a weak legal position, I plead guilty.

As to the plaintiff, I don't know if he was a "professional" plaintiff or not. Unless one of the attorneys can give me a good reason to disbelieve the account given by one of the parties, I give both sides' stories equal credit.

The fact is that mooting the claim for injunctive relief by bringing the facility into ADAAG compliance IS a defense. I have obtained sumamry judgment on this basis numerous times. In addition, once the claim is mooted, there is no entitlement to attorney's fees because the plaintiff is not the prevailing party (see the US Supreme Court's decision in Buckhannon.)
"Driving on" without attempting to obtain access was enough to defeat plaintiff's standing and if plaintiff was so far from his home that a motel was needed, the likelihood of plaintiff being denied access in the future (abother necessary element of standing) was laso very likely lacking.

Finally, you say that you don't know if the plaintiff was a "professional plaintiff" and that you gave each party's story equal credit. But you did not give the defendant's story "equal credit" in this case - you ignored the map showing that the same plaintiff and attorney had sued a DOZEN motels in the same area, convincing proof that you were dealing with a professional plaintiff and a "drive by" plaintiff's attorney (not to mention the settlements reached with the other motels, about which you obviously had knowledge since you cite the lesser amount paid in this case).

It may be that the amount paid was so low that mediation was, from Mr. Wu's point of view, successful. But that seems highly unlikely because it looks like he he went into mediation with the deck stacked.

What Mr. Wu did was to come to the mediation without YOU as his lawyer. Mr. Wu's lawyer did not believe he was entitled to summary judgment. He may have never tried. When you are mediating pro bono cases in the downtown Los Angeles Superior Court you get some of the best, and some of the worst, lawyers in the country. I rarely, however, see the best use my services free. It's usually the worst.

As to the professional plaintiff angle. Since I'm a commercial litigator, mediator and arbitrator by profession, I'm not certain I'd ever heard the term "professional plaintiff" at the time of this mediation.

I can imagine this, however. An individual in a wheelchair is looking for a motel room. He googles a motel in the area before arriving at the City he is visiting. He drives to that motel and sees that it lacks access for him. It's on a street with numerous motels. He drives past each one. None have access.

This man has suffered harm as a result. He brings suit against all of the non-compliant motels. The owner of those motels hire the attorney who represented Mr. Wu. That attorney does not know what you know. He does not say he is entitled to summary judgment. By his silence in response to my recitation of Plaintiff's attorney's legal position, it appears to the mediator (who is neutral) that he has no defense. With his attorney's implicit if not explicit consent, I make an attempt to help his client settle a case that he believes there is no defense to.

That's what I do for a living. I'm not only NOT an advocate. I'm not a judge. I work for the attorneys to help them help their clients do what they (the attorneys) think is best for their clients.

If Mr. Wu went into the mediation with the deck stacked, it is because he didn't have an attorney who knew the law well enough to win OR to negotiate a better settlement for his client.

What would be helpful at this point would be for you to publish an article in our local legal newspaper (send it to Sara Libby at the Daily Journal for the Focus or Forum column) to educate lawyers (including arbitrators and mediators) about this niche area of the law.

I agree with your points about Mr. Wu's representation. But it is obvious that you accepted that the plaintiff was acting in good faith and conveyed that perception to Mr. Wu as you worked him toward settlement. How likely is it that plaintiff was really lloking for someplace to stay and was unable to find a motel that was accessible? I have never been to a chain motel - including the cheapest national chains - that was not accessible.

There have been numerous articles written about ADA litigation mills - including some at overlawyered.com - not to mention dozens of US District Court opinions and orders recognizing the "professional plaintiff" phenomenon.

Best wishes for your litigation and ADR practices.