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Independence and Interdependence: The Good Side of Court-ordered Mediations

by Jan Frankel Schau

From Jan Schau's blog.

Jan Frankel Schau

This week marks the largest settlement I've ever "brokered" and the longest mediation over which I've presided thus far. A month ago, a compelling wrongful death and bad faith case came before me at the strong urgency of the Court. The case had a trial date of June 30, 2008. It was mediated back in 2005 (unsuccessfully and by a different mediator) and then had proceeded to a Motion for Summary Judgment which was granted in favor of the defendant and later reversed on appeal. While the mediation in May got a lot closer, the parties were still millions of dollars apart. Then came the daily phone calls, the true "negotiation", and the framing, re-framing, evaluating, re-evaluating for a full month. After one such conversation, the Defense lawyer advised me that he was instructed to put out his top dollar offer in a statutory offer. The negotiation continued. Last week, on the morning of the Final Status Conference, the Plaintiffs accepted the Statutory Offer which had been submitted 4 days before. While I take some credit for working with both parties to get to a number that would ultimately settle the case, I'm quite clear that the timing created by the Court (through both a trial date and a Statutory Offer) allowed the parties to finally end the negotiation and settle the case.

In another case, I was the presiding Arbitrator. The parties had spent hours and hours disputing and debating the claims, the damages and the discovery in advance. Finally, when they came before me last week, my preliminary ruling was to overrule the Plaintiff's objection to the Statutory Offer being used in an arbitration. Then I simply queried: "Would the parties like to take a few minutes to discuss possible settlement in light of that ruling?" Within 2 hours, that case also settled. It was only the urgency created by the actual "trial" (there were about 6 witnesses and an interpreter in the Office prepared to testify that day), that facilitated that settlement. The Court's process (allowing a Statutory Offer to create the threat that the Defendants may have been able to recover their costs if the Arbitration favored their side) facilitated a serious negotiation which ultimately settled the case without the full evidentiary hearing.

My conclusion is that in both cases, the Court process had the paradoxical effect of urging the "independence" of settling these two cases outside the Courthouse. I thought it fitting, on this week of Independence Day, to draw these analogies. Independence is a prize to be cherished, but our partnership with the institutions and organizations that protect and demand accountability sure help to foster true independence!

Now back to last week's comments. Many of you were confused by the "apology"--so let me explain. After commenting upon the "debate" which was reported by the Daily Journal before the L.A. County Bar Association, I heard privately from Charles Parselle, who demanded a correction and apology. Since I had not correctly or completely reported the event, I simply offered the apology that Charles had asked me to insert. I agree that it should not be a debate, and I had no intention of entering into the debate, but rather commenting upon the sad fact that the matter had to be debated in that way.

I wish you all a Happy Independence Day--but one that is mindful that independence cannot be celebrated without interdependence in its shadows.

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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