Do Secrets Compromise the Mediator's Neutrality?
by Jan Frankel Schau
View From the Middle of the Road Blog by Jan Frankel Schau
Occasionally, I get stuck in a corner where I know that the Defendant in a dispute would pay more than the Plaintiff's "bottom line". Of course, this is revealed to me in confidence, and of course, I maintain that confidence all day long--even after the case settles for something less than the Defense was willing to pay. Still I am a little haunted by the collision between my duty of confidentiality, which in this instance is crystal clear, and my duty of neutrality. By NOT revealing or even hinting to the Plaintiff and his counsel that the Defense would pay, hypothetically "up to $75,000" at any time before the case settles at $55,000, am I favoring the happy Defense counsel and his client? Am I maintaining my neutrality or do I have a duty to hint at the possibility of a better settlement to the Plaintiff even if he is quick to reduce his demand to $55,000? My hypothetical assumes that Plaintiff is satisfied with the settlement at $55,000 for a variety of reasons which may include Plaintiff's sordid past history, his lawyer's incompetence or failure to comply with discovery deadlines or his inability to finance future litigation. As in every settlement, the parties are both satisfied with the outcome of the mediation, but a mediator with a conscience is left wondering: does my duty of confidentiality compromise my duty of neutrality? I'd love to have your thoughts, fellow mediators as this one is a big SECRET!
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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