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Check the Mediator's Personal Biases at the Door

by Jan Frankel Schau
January 2013

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

Jan Frankel Schau

One of the tools that is most difficult to employ as a mediator is to check your own biases at the door. This week, for example, I had two mediations which challenged me to do just that. The first was a retaliation in employment case brought by a young man who was the same age as my son-in-law. I tried to imagine how my son-in-law would react to the issues brought in. In that case, the young man had learned that his manager was engaged in some criminal misconduct and reported him to the police. Thereafter, he was removed from this man's supervision and later experienced other employment consequences leading to making a claim against his employer for retaliation for being a whistleblower. No matter which way I struggled, I couldn't imagine any of my son's finding themselves in that predicament. It was only after the case was settled that I realized that I was bringing myself and my own pre-conceived notions of justice and integrity into the hearing. Big mistake.

The second case was a landlord/tenant case against a lawyer and his wife who had rented a beautiful home on the beach in Southern California and then discovered a number of problems with the property, ultimately withholding several months of rent. I assumed that one would be easy for me. I knew that a lawyer has a certain earning potential and that likely this would simply be a discussion of an offset for the defects in the property. Not so. I had no concept of how a lawyer and real estate broker could actually fall so far into debt far that they could not afford to pay their own rent. That one left in an impasse over less than $10,000.

This is merely a cautionary tale about bringing personal biases into the mediation conference room. If you sense that your mediator is not sufficiently detached from the litigants or their story to do this, try taking him aside and expressing that concern. It may be enough to re-focus the mediator and get the job done.

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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