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Interest Based Negotiation Applied Effectively

by Jan Frankel Schau

From Jan Schau's blog.

Jan Frankel Schau


Last week I had the privilege of studying with Randolph Lowry, the President of Lipscomb University and one of the founders of both the Straus Institute for Dispute Resolution and the Southern California Mediation Association, an organization of which I am the current President (18 years later!). Lowry co-taught a course on Advanced Mediation Skills with Judge Jack Etheridge, another founder of SIDR, retired Judge from Atlanta, Georgia. To be honest, the course seemed a bit elementary to me at the time. But this week, I had a mediation in which I applied my new-found "interest based negotiation" skills. I have learned from this blog experience, that I need to carefully disguise my facts to protect the confidentiality of the parties. So here's a quick synopsis of my fictional experience.

A mid-50's firefighter is out for his morning jog, when he is struck by a car and badly injured. As a result, he is unable to re-gain use of his right ankle, and accordingly has to accept an early retirement and is completely dependent upon his wife, a pre-school teacher, for basic, daily care. Their future is completely changed. Unfortunately, the driver has an insurance policy that is limited to $15/$30K, leaving them without a remedy that will provide enough funds for both the attorney and medical liens. Here was an instance where mediation was clearly more about the process than the outcome. I faced this bravely and strategically, preparing both sides for what I anticipated would be an emotional joint session. What I discovered, when I probed deeper, was that here was a couple whose life was out of their own control, beginning on the day of the accident. The victim of the accident was accustomed to "taking charge": he would be able to respond to an emergency and literally "put out fires". His wife, for her part, was used to imposing simple, human rules: show up, sit in your seat, wait your turn and speak up when called upon. The absence of the adverse driver from the proceeding infuriated them.

The resolution involved a promise by the insurance carrier to accompany the victim's lawyer to the home of the insured driver. They needed an explanation and proof that he was truly unable to do anything to compensate the victim or his family. This was more about "doing the right thing"--for both the insurance company and the victim and his wife, than about the monetary damages they had the potential to receive. The money was the easy part, but was clearly insufficient to satisfy them. What I learned from Lowry and Etheredge, however, was that the "law" only gives money as a remedy in civil actions. And this couple wanted something different.

This negotiation lasted all day, but resulted in a satisfying process and outcome for the participants and the mediator. Thank you, to Randy Lowry and Jack Etheridge, for giving this mediator the courage to explore the parties interests, even while knowing the positions and ultimate outcome.

Biography


Attorney Jan Frankel Schau is a highly skilled neutral, engaged in full-time dispute resolution. Following a successful career spanning two decades in litigation, she has mediated over 700 cases for satisfied clients. Ms. Schau understands the nuances of trial and settlement practice as well as client relations and balancing the needs of their representatives with the risk and expenses of trial. Those who have used Ms. Schau’s services recognize excellence in her persistence, optimism, creativity and integrity.

Ms. Schau was the President of the Southern California Mediation Association in 2007 and is recognized as among the most outstanding mediators in Southern California in the mediation of civil disputes by her peers and clients. She also serves as a Trustee of the Board of Directors of the San Fernando Valley Bar Association, and has presided as Chair of it’s Alternative Dispute Resolution Section and Litigation Section. She holds a Certificate of Advanced Skills in Negotiation from the Straus Institute for Dispute Resolution of Pepperdine University as well as from the Western Law Center for Disability Rights at Loyola Law School.



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Website: www.schaumediation.com

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