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A Funny Thing Happens when People Talk to One Another in Mediation

by Jan Frankel Schau
July 2016

Jan Frankel Schau's Mediation Blog

Jan Frankel Schau

This was an interesting week. I mediated three contentious, litigated matters. In each, at least one of the two attorneys were familiar, trusted clients to me. They knew my process and I knew I could trust them to be civil, professional and ethical. After we began the negotiation, in each instance, either the parties or their counsel grew frustrated by the snail’s pace at which the opposing party was moving. I did something a bit out of the ordinary for that phase of the mediation: I invited the two lawyers (without their clients) to come together to discuss how they might be able and willing to settle the matter. For me, a joint session during the negotiation phase of the mediation felt as though I was taking a great risk of losing control of the process and potentially isolating the clients from their counsel. At the time, it also felt like it might risk blowing up whatever progress we had made up until that time. Much to my delight, each time I brought the lawyers to talk and simply asked them to talk candidly to one another, the lawyers were surprisingly forthcoming about what they might recommend to their clients and what it would likely take to reach an agreement. After several hours more, each case settled.

My conclusion: sometimes the best service the mediator can provide is to get out of the way and simply facilitate an open dialogue between the parties and their counsel. If they are earnest about wanting to get their case settled, they can find the way together. And, by the way, wouldn’t that be an awesome approach to the civil unrest we’re experiencing right now? Dialogue. Openness. Civility. Exchange. We are, after all, all in this current mess together.

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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