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

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.

                        author

Jan Frankel Schau

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… MORE >

Featured Mediators

ad
View all

Read these next

Category

You Could be One of the 7%: Get the Most Out of Every Deal

Someone recently told me that you can’t argue with a story, only with a position or another argument. That’s why narrative is such a powerful negotiation strategy and why asking...

By Victoria Pynchon
Category

Beyond Neutrality (Book Review)

Order at Amazon.comIn Bernie Mayer’s new book, Beyond Neutrality the author introduces a new dimension of definition for the field of ADR, and more specifically, for the field of Mediation....

By Jon Linden
Category

Real-Time Online Video Meetings

From John Folk-Williams's blog Cross Collaborate Despite my share of disappointments with the latest “revolutionary” computer technology, I’ve become quite optimistic about online video meetings. In contrast to promotions about...

By John Folk-Williams

Find a Mediator

X
X
X