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<xTITLE>Ask the Hard Questions before the Negotiation Begins</xTITLE>

Ask the Hard Questions before the Negotiation Begins

by Jan Frankel Schau
June 2013

View from the Middle of the Road Blog by Jan Frankel Schau

Jan Frankel Schau

Not all lawsuits are motivated by a desire to obtain monetary damages from a party who has aggrieved another. There are, in fact, a myriad of reasons why someone may want to sue another party: to bring a company who they believe has wronged them down, to shame another person, to vindicate one's rights, to be heard, to prove to himself and/or his spouse or the world that he was right in standing up on his own behalf, or even to show someone their personal strength, intelligence and experience in a way that was not previously recognized by the other. It's hard to predict, because by the time a matter gets to mediation, it is typically framed in conventional pleadings covering a series of causes of action which are taken, element by element, from Forms of Pleading and Practice--not revealing the true motivation for bringing the suit.

Most Judges will agree that once a jury gets a case, they make decisions not based upon law, but upon personality: who do they like and who do they believe? The legal questions are all decided before trial. The jury is left only to decide matters of fact, based upon their own determination on credibility, and often, likability.

The motivation for bringing a legal action, will almost always reveal critical keys for unlocking it. If, for example, the aggrieved party is acting because he wants to prove that he was right, sometimes money alone can't do that: an acknowledgement, public exposure, an agreement to take steps to prevent such misconduct in the future may be necessary. If, on the other hand, the lawyers have become passionately embroiled in a contest of strength and skill between them, sometimes a few rounds of litigation, or even a concession or two may be what's needed to empower the advocate to recommend settling the lawsuit at any amount.

The cautious mediator will give voice to every participant's true objectives by asking them probing questions early on which are designed to dig deeper than the initial demands or offers and to uncover the true motivations for moving forward or pushing back. It is only after this initial sensitive work is done that the process of negotiation can begin in earnest.


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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