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Begin the Mediation Before the Hearing

by Jan Frankel Schau
October 2013

View From the Middle of the Road Blog by Jan Frankel Schau

Jan Frankel Schau

Call me old-fashioned, but I think it is critical to have a voice to voice conversation with every lawyer involved in a litigated case before the mediation begins. This week, I failed to follow my own cardinal rule because after the first conversation with the defense lawyer, I knew that my hardest effort would be to get his clients on board with an earnest interest in settling the dispute.

Then when I arrived, the Plaintiff's lawyer informed me that her client was short on time and requested I begin the process with them. I happily obliged and ultimately got the parties negotiating earlier than usual in the process. The trouble was that neither had revealed to me beforehand that they had previously discussed settlement and that there had been pre-litigation offers and demands (between the principals before they engaged lawyers) that were identical to those made at the hearing, but now after many months of litigating and incurring costs and fees on both sides.

When I returned the "final" demand, the Defendants, understandably, were incensed by the number, since this had been communicated to them many months before. They lost faith in the process and walked out without a settlement. The whole debacle could easily have been avoided had either side communicated to the mediator what the history of settlement negotiations had been.

Next time, I am going to ignore the signs and signals and ask the probing questions of both sides before I sit down with their clients to begin. Email communication only goes so far. Go ahead and call me old-fashioned.

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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