Make No Assumptions in Mediation


by Jan Frankel Schau

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

September 2013

Jan Frankel Schau The problems encountered by the Plaintiff are generally laid bare in pleadings and through discovery by the time of a mediation hearing. After reading and reviewing a comprehensive mediation brief, we mediators can get to a place of thinking we know the darkest secrets which lead to the conflict. But as a wise mediator said to me once, "you don't know what you don't know". For this reason, it's unwise to make any assumptions.

In last week's mediation against a governmental agency and a former employer, both of the Defense lawyers independently and separately revealed true and shocking facts regarding their own personal backgrounds during the course of a long day's mediation. One of them, who had flown in from a well established large defense law firm, had grown up abjectly poor and understood the depths of the Plaintiff's financial plight more than anyone may have imagined. The other had suffered a similar legal issue as a young man and knew firsthand how his past had haunted and plagued his efforts once he changed his life, went back to school and then law school and finally sought a job with a governmental agency, where his legal record threatened to derail the plans he made for himself as a prosecutor many years later.

On this month after the Jewish Yom Kippur, where the Book of Life is laid open and we are asked to confess our sins and repent for our transgressions, it is a good reminder that not everyone is an open book. There are dark secrets in every person's past. If we accept that we don't know the participants in the mediation, we can remain more open-minded, more generous and more creative about the particular dynamics that converge to resolve the most vexing disputes.

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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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