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Mediator's Ethics: Does It Include A Just Outcome For The Disputants?

by Jan Frankel Schau
November 2009

From Jan Schau's blog.

Jan Frankel Schau

Yesterday I attended the Southern California Mediation Association's 21st Annual Conference. The piece by Professor/Dean Peter Robinson of The Straus Institute of Dispute Resolution at Pepperdine University really caused me to examine my practice. Although the talk was billed as "Ethics for Mediators", Professor Robinson provoked us to question whether mediator's have a heightened duty to make sure that whatever agreements we "broker" have legitimacy, integrity and meet legal standards. The legal standards would, of course, include only those agreements which were not entered under duress or coercion, were based upon informed consent and entered into by a person of sound mind and capacity. Robinson suggests that this is all the more important because if a party enters into an agreement in the context of mediation, he or she can never establish that the agreement was unfair and therefore set it aside later. Hmmm...This puts a burden upon the lawyer mediator that I'm not sure I'm willing to accept. I was pretty satisfied being staunchly "impartial" and allowing the parties to exercise their self determination. And yet....It's noteworthy to point out that there are Model Standards for Mediators, which are a little different from those adopted here in California, that require both self-determination and fairness. Occasionally, these contradict one another. I have frequently presided over mediations in which I believed that one side was getting an unfair "deal"--but did not intervene to re-balance the terms of a deal which both sides agreed to enter into. While I routinely "test" whether there is money left on the table, for example, I typically refrain from interfering in a negotiation which seems to me to be imbalanced. I assume that each party, always acting through their attorneys in my case, have their own reasons for doing what they are about to do--even if it doesn't make sense to me. There is something driving them to reach the deal that they strike--and I'm generally satisfied that I need not safeguard the "outcome", just the fairness of the process. Robinson's lecture suggests otherwise. I'm still examining...

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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