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Physical Presence

by Phyllis Pollack
November 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       As I have mentioned several times over the last few weeks, the Southern California Mediation Association (“SCMA”) will be hosting its Annual Conference on Saturday, November 7, 2009 at Pepperdine University School of Law, Malibu, California. (See, 2009 SCMA Conference) It will be preceded by a dinner on Friday night, November 6, 2009 at which Lee Jay Berman will host a discussion entitled “M3: How Do Mediators Spread The Word And Better Educate Users.” 

       The Conference is entitled: “M3 The Next Generation” and will explore all of the various ways in which mediation is being used, can be used and will be used. One of the panels will explore this from the female perspective. The panel, comprised of Jan Frankel Schau, Esq., Joan Kessler, Esq., Amy Fish Solomon, Esq., and Stacy Phillips, Esq. will examine the now historic literature on gender and communication and question its applicability in negotiation and mediation in 2009. The panel discussion, entitled “Negotiating in the Female Voice: What Can We Learn From Our Women Colleagues (Not For Women ONLY)” will explore the gender biases, assumptions, empathy and competition in mediation and negotiation.

       I highlight this panel because recently one of its panelists, Jan Frankel Schau, made a very interesting point in her Schau’s Settlement Strategies. In it, she discusses the importance of having the important decision makers at the mediation and fully present in all respects. (See, top-twelve-tips-for-success-in-negotiations) Why? She explains:

      “Statistics suggest that 55% of communication is non-verbal. It stands to reason, then, that if the decision maker is not present. . . , they miss out on more than ½ of the communication going on. . . .” (Id.)

       Thus, when the client is not physically present at the mediation session, she does not become “invested” in the process; rather she is distracted by emails and what is going on where she is physically. Further, and more importantly, she is unable to respond to the bulk of the  communication during mediation, since it is non-verbal. Thus, she will probably miss much of the true value of mediation, and as importantly, her matter will probably result in a disappointing outcome.

       Ms. Schau further points out that while attorneys may dislike joint sessions, the clients, (i.e.  the actual parties to the dispute) appreciate them. Why?  . . .“The clients bring the conflict in and they are a critical component to its resolution.” (Id.)

       Ms. Schau makes some important points. To learn more of what she has to say, come to the Conference and attend her panel discussion.

       . . .Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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