Begin the Mediation Before the Hearing

Call me old-fashioned, but I think it is critical to have a voice to voice conversation with every lawyer involved in a litigated case before the mediation begins. This week, I failed to follow my own cardinal rule because after the first conversation with the defense lawyer, I knew that my hardest effort would be to get his clients on board with an earnest interest in settling the dispute.

Then when I arrived, the Plaintiff’s lawyer informed me that her client was short on time and requested I begin the process with them. I happily obliged and ultimately got the parties negotiating earlier than usual in the process. The trouble was that neither had revealed to me beforehand that they had previously discussed settlement and that there had been pre-litigation offers and demands (between the principals before they engaged lawyers) that were identical to those made at the hearing, but now after many months of litigating and incurring costs and fees on both sides.

When I returned the “final” demand, the Defendants, understandably, were incensed by the number, since this had been communicated to them many months before. They lost faith in the process and walked out without a settlement. The whole debacle could easily have been avoided had either side communicated to the mediator what the history of settlement negotiations had been.

Next time, I am going to ignore the signs and signals and ask the probing questions of both sides before I sit down with their clients to begin. Email communication only goes so far. Go ahead and call me old-fashioned.

                        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

Conflict Mediation Across Cultures: Pathways and Patterns (Book Review)

Order at Amazon.comDavid Augsburger’s book, Conflict Mediation Across Cultures, is not only a scholarly work in regards to conflict resolution, but also a wonderful collection of folk tales and proverbs...

By Bonita Para
Category

Bargaining in the (Murky) Shadow of Arbitration

Disputing Blog by Karl Bayer, Victoria VanBuren, and Holly HayesJill Gross, Associate Dean for Academic Affairs and Professor of Law at Pace University’s Elisabeth Haub School of Law, has published...

By Beth Graham
Category

Linda Singer: Mediation Can Prevent Violence – Video

Linda Singer describes one of her concerns as being the lack of education within schools about alternative methods to resolve conflict. Mediation has been proven to have a positive impact...

By Linda Singer

Find a Mediator

X
X
X