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What I Learned from Sitting on the Other Side of the Table

by Jan Frankel Schau
October 2014

Jan Frankel Schau's Mediation Blog

Jan Frankel Schau

Since 2003, when I quit litigating, I have never attended a mediation as a disputant–until last week. Unfortunately, my parents, both age 87, were named in a messy business dispute which required us to hire outside counsel. Luckily, both sides to the dispute had the wisdom to know that an early mediation would be the best alternative to long and expensive litigation against my aging parents. Of course, this also meant that I couldn’t be the mediator. So it was that I found myself in a different position than my usual “head of the table”. Here were my observations:

1) Those long lapses between “visits” by the mediator did not seem as long as I thought they might. Our “side” was always engaged in strategizing about “next steps” and absorbing and reacting to the last.

2) There really was a moment of transformation where my family accepted the possibility that the facts underlying this lawsuit could be viewed from a different light. We did not, as I recall, admit that aloud to one another. But there was a subtle acceptance of risks that we had not appreciated before the very credible mediator presented them.

3) Spending a full hour in “pre-mediation” separate telephone calls really served the mediator and the parties well. We never felt the need to go over the facts that were outlined in the brief in excruciating detail because from the moment we began it was clear that he understood them.

4) The mediator built up enough trust and rapport that my family wanted to invite him for dinner. By the time he suggested the terms for a proposed settlement, he had them. I, on the other hand, still felt there was more negotiation that could have been done, but I was outvoted in favor of “just saying yes”.

5) I really regretted the mediator’s decision to introduce counsel and the parties to one another. They had never met and I was determined to at least facilitate a face to face greeting so that my mother and father would not walk around with a demon in their heads for the rest of their lives. Since the mediator chose not to do that at the outset, we did it informally at the end, but in my opinion it was awkward and not well served by then, once my parents had agreed to pay much more money to the Plaintiff than they believed was due.

I wonder if any other mediators have had this experience and what lessons you may have learned from participating in a mediation from another perspective than Mediator?

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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