AOL Free Trial? Not so Free! ***WON***

[legalpickle]

I should be able to deal with this by 11:30 tonight. Sorry for the delay.

[legalpickle]

Hi Legalpickle,

 

I have the telephone mediation with Mason Hayes first thing tomorrow. I need to prepare an opening statement which should include answers to the following questions.

(a) What would be a fair solution for you?

(b) What would be the best result that you can realistically hope for if the matter goes to Court and what would be the worst?

© What is the strength/weakness of your case and that of the other side?

(d) Do you know what the other side's main concerns are?

 

Any tips on the mediation?

 

First. Copied from the info sheet provided by Manchester County Court for mediation:

 

What is mediation?

 

 

In mediation, each side to a dispute has a chance to put its case and to hear what the other side has to say. A mediator helps both sides reach agreement about how a dispute should be settled. To get the best out of the process it is important that the parties understand it and come prepared.

 

What does it involve?

 

You will talk to a mediator who has been trained to help people to settle their disputes. The mediator is not a Judge. He or she will not take sides or decide who is right or who is wrong. They cannot give advice.

 

If you have a telephone appointment, then please ensure that you are free from any interruptions and possible distractions. The time set aside for the appointment is usually 1 hour. However, the mediator and parties may decide that more time is needed to facilitate an agreement. The telephone negotiations may take place on the same day or carried over until another mutually convenient day.

 

What happens at the telephone mediation appointment?

 

What usually happens is that the mediator will phone one party first. He or she will briefly explain what the process is about. You will be given the chance to tell the mediator what your case is about and what you are looking for. Be brief. Remember that the mediator is not a Judge. Within the sessions, try to work with the mediator to find a solution. Be frank. What you say is confidential; you may know something that will help the mediator in talking to the other side.

 

After this first session, the mediator will phone the other party to see what their case is all about and what they are looking for. These are private sessions. The mediator will not tell the other side what he or she has been told unless given permission to do so. However, the mediator will be looking for solutions to problems and will be interested in what each side needs.

 

When the mediator is with the other side, use your time. Think about what has been discussed. Consider what you may be able to offer or accept. Decide exactly what your needs are.

 

By moving between sides, carrying information, suggestions, ideas, explanations or offers, the mediator will seek to help everyone to reach a solution to their dispute.

 

If you reach agreement, remember that it will be binding on you, and the court proceedings will be ended. Make sure you can comply with the agreement. If agreement is reached, a memorandum of the terms will be prepared by the mediator and an order will be made staying the claim except for the enforcement of the agreement. Note: This is not always the case. This is why it is agreed a party will make a certain amount of payments each month or a long term agreement is in place. If an immediate settlement is agreed upon, then the claim is kept live till the settlement is received, when the claim is discontinued, rather than wasting a District Judge's time and more time in formulating the exact terms of the agreement.

 

 

If agreement is not reached, the normal court timetable will continue and the legal action will go ahead. However, remember that the negotiations and any terms of settlement proposed during the mediation appointment are confidential and cannot be repeated once proceedings have been referred back to court.

 

Even if the mediation does not end with agreement between the two sides, you may find it was helpful and that each side understands the other’s point of view more clearly. You can always try to settle the case at a later date between the mediation and the date fixed for the hearing.

 

 

Now onto the relevant bits: I have found that some mediators like to discuss the case in detail and take each sides arguments. I disagree with this route. Mainly, because on the telephone it is a lot easier to slip up. If everything's written, there's no way what you didn't mean can be used against you.

 

I therefore believe in recapping the very basics of the case and when the mediator starts chatting about the other sides defence, state, I've read their defence [and if relevant any further documents that have been served] and know what they say. I've responded to it, and they know I disagree. This mediation is not going to get us to agree with one another, and I don't expect it to. Bottom line, is I want to know how much they're willing to offer to settle.

 

The next problem, is mainly with large companies. They don't like making offers and like to get you to make the first move. I always refuse to do this. The usual process should be that the defendant makes the first offer, and the claimant a counter-offer if necessary.

 

So, this is what I recommend:

1) When the mediator calls you to ask you about your claim, summarize. Your summary is as follows:

Part 1: I signed up for one account with the Defendant and eventually cancelled it. They cancelled it late, so I lost money.

 

Part 2: I set up a computer that had the Defendant's software pre-installed. I didn't sign up for their "service" but they subscribed me anyway, without my permission. When I complained I was getting charged too much they claimed they couldn't find my account. It eventually was cancelled when they sent me a demand as there was no money in my account to where the debit card was linked.

 

As the transaction was set up on "continuous" processing, only the Defendant could stop it, and Barclays - my bankers - couldn't, even though I changed my debit card several times.

 

This so called "service" was never used.

 

Part 3: Because of the Defendant charging me for a "service" I had never agreed to, there wasn't enough money in my account and some payments to them took me overdrawn. I am holding them liable for those charges.

Tell the mediator how much you claimed on the date of issue (including interest on that date) and how much interest has been added till the current date. That's the total you're due tomorrow. (To reach the interest due tomorrow just times the daily interest figure, I think it's 15p in your claim by the amount of days between the date the claim was issued and tomorrow).

 

Note: I don't know what happens with the court fees based on your fee exemption due to JSA. You may want to check with the mediator or call the court office, unless somebody else knows. If you'll have to pay these if you succeed then tell the mediator that if the Defendant settles now, they have to pay the issue fee - £65 - but not the hearing fee as more than a week is left till the hearing.

 

Next: The mediator will call you back, most likely with a whole load of arguments on behalf of AOL. What I would do is say this: "I know the Defendant's arguments and have responded to them in writing. I disagree with them and they disagree with me. I think it is a waste of everybody's time to use this important session to argue over the issues, when I'm not going to agree with them and they're not going to agree with me. Bottom line is I want to know how much they're willing to settle at. I want a settlement, not an argument over who's right." Be polite but firm!

 

The mediator will probably ask you what your bottom line is. Say that you want to hear what they want to offer, first and then will see. I suggest you don't go below 85% of the total with interest as of tomorrow PLUS the court fee if necessary (i.e. if you'll have to pay it). Work that out before the meeting. If you have a higher figure in mind, take it. If they offer more than that, take it, but that is unlikely.

 

If they offer less than that, tell the mediator that you think that's ridiculous, but in the interests of closing the matter once and for all will accept 95%. The mediator may ask your bottom line, respond that that is it. If they accept, good. If they offer between that and your bottom line, fine. If not, go down by 5% to 90%. Then to 87.5%, then to 85% as absolute bottom line. Don't lower by too much, or they'll push you further down.

 

Decide your absolute bottom line before you begin. I recommend not below 85% under any circumstances. Work out all the calculations and percentages before and keep them on a clear sheet of paper.

 

NOTE: The mediation meeting is completely without prejudice. It cannot be disclosed to a judge, except that it has taken place, if you don't reach an agreement. If you don't succeed, then ask the mediator to reiterate this to the Defendant.

 

Also note that the hearing is 10th August. This is VERY soon. It must be made clear that you will only discontinue when the cheque arrives, and as the 7 days are this Monday, if the cheque does not arrive by then, if you are liable for the hearing fee if you succeed, then that will be added to the amount due from the Defendant. In the alternative, and this would be ideal. If you have access to a fax machine, say that you are willing to accept that they fax you confirmation that you will receive the cheque, say within 14 days, and that they understand that if you don't receive it by that date, you will reissue proceedings for the full amount claimed (not settled at) plus interest and the costs you've incurred to date. But, assuming all goes well when you receive that fax, you'll discontinue the proceedings - post back here and I'll go through that with you.

 

Ask that they give you fax numbers for the Solicitor and AOL to send the Notice of Discontinuance to. Try not to use e-mail for anything.

 

Best of Luck!

 

Please keep us posted.

[la2006]

Thanks for the above, I've got the date mix up though as the mediation is on 30 July, they had offered the 29th but then had to change it to the 30th.

[legalpickle]

Thanks for the above, I've got the date mix up though as the mediation is on 30 July, they had offered the 29th but then had to change it to the 30th.

Ok.

 

Please - for yourself - have everything, and all figures prepared well before the mediation. If you have any questions then try to post them tomorrow morning, and I should have time to answer tomorrow afternoon.

 

Make sure everything is clearly written down on paper - don't depend on a computer for the conversation, knowing luck the computer will stop working. Also, have a calculator, so you can tell how ridiculous an offer is (for example if they offer £225, you need to quickly do the maths and say that's 2...%, that's ridiculous).

 

If it's on a landline and others have access to the phone, make sure all know it can't be used for that hour - even though you won't be on the phone the whole hour, as you won't know the exact minute they're going to call back.

 

Make sure you're in a room on your own without any potential disturbances.

 

Best of Luck!

 

Looking forward to hearing of another success!

 

REMEMBER: Whilst it would be ideal to settle the claim and be done with it, it isn't the end of the world to go to court. Some experience might be good, so don't panic if it's not going your way. If you let them walk all over you, it won't stop there, it'll happen with everybody!

[la2006]

I had the incomplete telephone mediation which hasn't been settled yet. Mason Hayes wasn't answering the mediators phone calls until around 9.40, so the mediator was just calling me to tell me she had left voicemails, that she had dealt with Mason Hayes and they are usually very reliable.

 

When Mason Hayes finally answered, the mediator called me saying they said:

 

1) If it did go to court it would be very hard to prove that the first account was never used.

2) That the court claim should be directed to two defendants, another company and carphonewarehouse

3) They are willing to offer an amount which is very low, very low ( she didn't tell me the amount, just its very low).

 

I said 95%... then 87.5% of the total claim to settle today. The mediator then called me back saying that Mason Hayes need to contact their client for further instructions. She said that if she hears anything by 1.30pm today she will call, ( she's out of the office for the rest of the day)/ or at around 5-6pm, or first thing tomorrow morning.

Edited July 30, 2009 by la2006

[la2006]

Looking forward to hearing of another success!

 

Hi Legalpickle,

 

I just got of the phone again with the mediator, they have agreed to settle for £750 by cheque, which I agreed to ( I don't have to pay any courts fees, so none was included), and am very happy about. The mediator also said that the cheque will take upto 28 days to get, and it just not possible to get before the hearing date.

 

I will get the mediator's agreement within the next hour or so by e-mail. She also said I need to write to the court by August 3, that this case has now been settled.

 

Thank you for all the hard work and time you put into this case, can't believe I going to get all that money back until the cheque arrives in the post.

Edited July 30, 2009 by la2006

[legalpickle]

I had the incomplete telephone mediation which hasn't been settled yet. Mason Hayes wasn't answering the mediators phone calls until around 9.40, so the mediator was just calling me to tell me she had left voicemails, that she had dealt with Mason Hayes and they are usually very reliable.

 

When Mason Hayes finally answered, the mediator called me saying they said:

 

1) If it did go to court it would be very hard to prove that the first account was never used.

2) That the court claim should be directed to two defendants, another company and carphonewarehouse

3) They are willing to offer an amount which is very low, very low ( she didn't tell me the amount, just its very low).

 

I said 95%... then 87.5% of the total claim to settle today. The mediator then called me back saying that Mason Hayes need to contact their client for further instructions. She said that if she hears anything by 1.30pm today she will call, ( she's out of the office for the rest of the day)/ or at around 5-6pm, or first thing tomorrow morning.

Hi Legalpickle,

 

I just got of the phone again with the mediator, they have agreed to settle for £750 by cheque, which I agreed to ( I don't have to pay any courts fees, so none was included), and am very happy about. The mediator also said that the cheque will take upto 28 days to get, and it just not possible to get before the hearing date.

 

I will get the mediator's agreement within the next hour or so by e-mail. She also said I need to write to the court by August 3, that this case has now been settled.

 

Thank you for all the hard work and time you put into this case, can't believe I going to get all that money back until the cheque arrives in the post.

Excellent news. That's only £90 less than you originally claimed, or £110 less than today with interest. As of issue that would be 89.29% and as of today 87.11% according to my calculations, which is very good.

 

No problemo! Thanks for giving me the satisfaction of a win, I needed something good to happen today!

 

When you receive the cheque, please let us know. Please also let us know when it clears, and this thread can be marked as won. It would be nice if you donated a small amount of your winnings to CAG to allow it to continue the excellent work.

 

You didn't say what your response to the mediator was. I would have responded that "I've read their defence and responded to it. I disagree with it and believe I have good chances of success and they have no reasonable prospects of success. It is a waste of our time to discuss the pro's of the case and the alleged con's that the Defendant raises, so bottom line, what are they willing to pay?"

 

Anyway's, I don't think Mason Hayes are usually reliable, not in my experience at least. AOL definitely aren't! But, once you have the mediators e-mail confirming that the Defendant has agreed to £750 within 28 days, print it with PrimoPDF and on your printer, and KEEP IT SAFE.

 

Then fill in the attached Notice of Discontinuance (I tried to find the link for it on HMCS website but something seems to be wrong with their form finder) as follows;

1. Top Right: In CAPITALS: BOW COUNTY COURT

2. Directly below 1: In CAPITALS: The claim number: 9.....

3. Directly below 2: Your full name, as on the claim form.

4. Directly below 3: AOL (UK) Limited

5. Tick the box "discontinues all of this claim"

6. In the date box: 30th July 2009

7. At the very bottom of the page, where it says "The court office at": Bow County Court, 96 Romford Road, London, E15 4EG

 

Now do a cover letter to the court office and Mason Hayes as follows (fill in the blanks and where I have written "Your Full Name");

 

To the court:

 

The Court Manager,

Bow County Court,

96 Romford Road,

London,

E15 4EG

 

30th July 2009

 

Dear Sirs,

 

Re: Claim No.: 9....

Parties: Your Full Name vs. AOL (UK) Limited

Hearing: Date at Time

 

I write as with regards to the aforementioned claim.

 

I am pleased to notify the court that a settlement was reached today with the assistance of the small claims mediation service.

 

Please therefore cancel the hearing scheduled for date at time.

 

I hereby attach a signed N279 - Notice of Discontinuance.

 

I confirm that I have served a copy of the N279 on the Defendant's Solicitor's.

 

Sincerely,

 

 

Your Full Name - Claimant

 

 

 

To Mason Hayes:

 

FAO: Mr. Marcus David Hayes,

Mason Hayes Solicitors,

address

 

30th July 2009

 

Dear Sirs,

 

Re: Claim No.: 9....

Parties: Your Full Name vs. AOL (UK) Limited

Hearing: Date at Time

 

I write further to the aforementioned claim against your client.

 

I am pleased that we were able to reach a settlement today through the free small claims mediation service. It is a shame your client couldn't realize that they had no realistic prospects of success before this date, but thankfully they did realize it in time for the scheduled hearing.

 

I am confirming that I am expecting to receive the sum of £750, by cheque, made payable to: Your Full Name, by no later than Thursday 27th August 2009, as agreed.

 

Should I not receive this cheque, as agreed and confirmed by the mediator, or the cheque not clear, I will issue new proceedings on 28th August 2009 and not discontinue the proceedings till such time as a FULL settlement PLUS costs is received and clears.

 

On this occasion, due to the scheduled hearing rapidly approaching, I am discontinuing these proceedings, on the basis of the promise that a cheque for £750 will be received by me, by no later than 27th August 2009 (28 days from today). I hereby attach a N279 - Notice of Discontinuance, signed & dated by myself.

 

I confirm that a copy of the N279 has been served on the court office by Royal Mail Special Delivery.

 

Sincerely,

 

 

Your Full Name - Claimant

NoticeofDiscontinuance-N279.pdf

[la2006]

I've got the mediation agreement from the mediator so will post the letters above.

 

I will give a update when the cheque arrives from AOL and will donate to CAG as I would not have gotten anywhere with AOL without the help from this site.

 

Thanks Again

[Conniff]

Well done - I will look forward to seeing 'won' after the subject heading.

[legalpickle]

I've got the mediation agreement from the mediator so will post the letters above.

 

I will give a update when the cheque arrives from AOL and will donate to CAG as I would not have gotten anywhere with AOL without the help from this site.

 

Thanks Again

Excellent. Post them both special delivery & sign both letters & the notice of discontinuance.

 

Looking forward. I'm sure it will be much appreciated.

 

No problemo.

[legalpickle]

la2006: Have you received the cheque yet? According to my understanding you're meant to be receiving it by this Thursday's post latest.

 

Whoever gave me the rep with this message "having read all of legalpickle`s post,s i think he should change his name to a suitable superhero`s name because i for one think (no actually i know) he deserves it"

Thanks:D!

[la2006]

No I still haven't recieved the cheque yet, they have got until the 27th, so really they have 2 more days to post it out ( they better send it by special next day delivery, as theres more postal strikes and bank hoilday weekend)

Edited August 24, 2009 by la2006

[legalpickle]

No I still haven't recieved the cheque yet, they have got until the 27th, so really they have 2 more days to post it out ( they better send it by special next day delivery, as theres more postal strikes and bank hoilday weekend)

Ok. Keep us posted please.

[la2006]

Still no cheque from AOL, they've now had 28 days. I got my post but nothing from AOL.

[buzby]

To show your 'reasonableness' leave it until the Tuesday, then go back to the mediation service and explain they didn't cough up, and take it to the next stage.

[la2006]

To show your 'reasonableness' leave it until the Tuesday, then go back to the mediation service and explain they didn't cough up, and take it to the next stage.

 

I will give them until tuesday, hopefully AOL will pay up by then.

[legalpickle]

Still no cheque from AOL, they've now had 28 days. I got my post but nothing from AOL.

Do you have a fax and/or telephone number for Mason Hayes?

To show your 'reasonableness' leave it until the Tuesday, then go back to the mediation service and explain they didn't cough up, and take it to the next stage.

I disagree, knowing the process and that the mediation service can't do anything because the claim was discontinued under the agreement rather than permanently stayed under a judge's order.

 

The mediation service can't do anything whatsoever. They don't have any enforcement rights. If the agreement had been signed by a judge than enforcement could be done by application on notice, but it wasn't. It's still valid as an agreement, but it can't be enforced without court proceedings.

I will give them until tuesday, hopefully AOL will pay up by then.

 

I therefore recommend you answer my question above (in this post). I will then draft a letter for you to send to Mason Hayes - tomorrow - giving them till Tuesday at 4pm to make payment to you, or you issue proceedings again on Wednesday for the full amount plus interest.

[la2006]

Do you have a fax and/or telephone number for Mason Hayes?

 

 

I have the fax number, telephone, and the email address. All of their details was included in the Mediation agreement email.

Edited August 27, 2009 by la2006

[MARTIN3030]

"I disagree, knowing the process and that the mediation service can't do anything because the claim was discontinued under the agreement rather than permanently stayed under a judge's order.

 

The mediation service can't do anything whatsoever. They don't have any enforcement rights. If the agreement had been signed by a judge than enforcement could be done by application on notice, but it wasn't. It's still valid as an agreement, but it can't be enforced without court proceedings."

 

 

Absolutely LP.

[legalpickle]

I have the fax number, telephone, and the email address. All of their details was included in the Mediation agreement email.

Please check these are the details for Mason Hayes, not AOL. As their Solicitors communication would need to be sent to Mason Hayes, it could be copied to AOL, but would need to be sent to Mason Hayes.

 

Please confirm these details you have are for Mason Hayes? If they are, then I'll prepare something for you to send to them by fax & e-mail.

[la2006]

Please check these are the details for Mason Hayes, not AOL. As their Solicitors communication would need to be sent to Mason Hayes, it could be copied to AOL, but would need to be sent to Mason Hayes.

 

Please confirm these details you have are for Mason Hayes? If they are, then I'll prepare something for you to send to them by fax & e-mail.

 

Yeah, the contact details are Mason Hayes Solicitors fax/telephone number, and the solicitor's email address.

[legalpickle]

Yeah, the contact details are Mason Hayes Solicitors fax/telephone number, and the solicitor's email address.

Excellent. Can you get to a fax machine first thing tomorrow morning?

 

Please put the below into a letterhead with your details, and fill in the gaps. Make sure it's all in there.

 

E-mail it AND fax it TOMORROW first thing. Sign the faxed one.

 

Please continue to keep us posted.

 

 

28th August 2009

 

Dear Sirs,

 

WITHOUT PREJUDICE, SAVE AS TO COSTS

 

Re: Claim No.: xxxxxxxx

Parties: xxxxxxxxxx vs. AOL (UK) Limited

 

I refer to the above action of mine against your client.

 

Agreement was reached on 30th July 2009 that your client will send me a cheque for the sum of £750 in full and final settlement of my claim within 28 days from that date.

 

28 days expired yesterday, however no cheque was received from your client.

 

I made it clear that if no cheque is received by the deadline I will issue court proceedings again, as they were discontinued on the basis of that agreement, seeking the full amount, plus interest and costs.

 

As a gesture of goodwill I am giving your client till 4pm on Tuesday 1st September 2009. Should I not receive the cheque by then, I will be issuing proceedings immediately, without further notice.

 

I seriously recommend to you that your client sends the cheque by Royal Mail Special Delivery as no other form of mail by Royal Mail is guaranteed. I seriously recommend that the cheque is dispatched by this service today, as Monday is Bank Holiday.

 

Sincerely,

 

 

 

xxxxxxxxxxxx

[la2006]

excellent. Can you get to a fax machine first thing tomorrow morning?

 

Yes I will be able to fax and email the letter tomorrow. I will update once I get a response from Mason Hayes.

[legalpickle]

Yes I will be able to fax and email the letter tomorrow. I will update once I get a response from Mason Hayes.

Excellent. Looking forward to hearing of some success!

[la2006]

I got the cheque this morning so of to the bank I go. The thread be changed to WON?

Edited September 1, 2009 by la2006