I delivered a Continuing Education Lecture this week on "The Ethics of Negotiation". As always, I learned a lot from my audience, an impressive group of lawyers with an age range from mid-20's to late 50's. I struggled with the message to deliver because my research allows for a considerable amount of deceit in negotiations, which I've come to expect and accept. But this week, I was on alert for these deceptive strategies when I negotiated a transaction which I felt slightly morally reprehensible, or maybe just unfair. Without revealing any of the facts, the case involved an elderly woman who was evidently wealthy enough and sufficiently uncomfortable about the lawsuit against her to offer more money than a Plaintiff would have normally expected based upon the particular set of facts and legal obstacles involved. I brokered a deal where all were satisfied, or even delighted, but it had a certain thud in my own instinctive gut after it was over.
Does the mediator's personal conscience matter? My conclusion was it does not. If I can't step back and allow the parties to craft a deal in which all parties are comfortable, than my only move should be to withdraw or recuse in advance. I have done that on only one occasion when the factual scenario struck me as not only unfair, but echoed a personal experience with a lawsuit on similar grounds. Otherwise, I'm left to conclude that the mediator's personal conscience has to be checked at the conference door. That's why each party is represented by a lawyer, and I'm delighted to give them the responsibility of both evaluation and conscience over the results of their actions.
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.