Friday, February 28, 2014

View from the Middle of the Road: It Ain't Over Until it's Over: Keeping Everyone P...

View from the Middle of the Road: It Ain't Over Until it's Over: Keeping Everyone P...: This week, I presided over two hearings where the parties were in a hurry to leave.  In one, the case was settled, but in our collective ...

It Ain't Over Until it's Over: Keeping Everyone Present during Mediation

3-professionals-2This week, I presided over two hearings where the parties were in a hurry to leave.  In one, the case was settled, but in our collective haste, not one of the parties or their lawyers caught the fact that the short-form settlement agreement expressed an agreement to pay $00.00.  This left the Plaintiff's lawyer concerned enough that the following day he sent an email revoking his client's acceptance of the offer!  Of course, all is well and the Defense lawyer agreed that this was an error, not a con, but it still gave me pause for concern about the quick exit made by everyone.
Then the next day, the Plaintiff accepted a mediator's proposal and then left the hearing to pick up her child before the Defendant accepted or rejected.  He did reject, but when I communicated his counter-offer to her lawyer, she was unreachable and I had no choice but to excuse everyone until Plaintiff's lawyer could discuss the counter-offer with his client.  After everyone left, I was unable to reach any one other than the lawyers.  The hard work and close-to, but not yet completed negotiation virtually fell apart because the process had completely changed once all communication was filtered through lawyers and telephones or worse yet (in my opinion) email.
Just like the children's game of "telephone", something is invariably lost in translation when communication is anything other than face to face.  What's more,  the parties lost out on the valuable momentum that was built up during the mediation.  How do you keep the parties physically present until the case is completely resolved?

Friday, February 21, 2014

How do you manage emotions and tempers in mediation?

In mediation, there are often moments when we become coaches through difficult, emotional moments.  At those times, I find it is helpful to take a lesson from addiction counselors.  They call it "SOBER" breathing and it works like this:  Stop, Observe, Breathe, Evaluate and then Respond.
SOBER-smallWhat techniques have you used or observed to be effective when emotions erupt and tempers flare?

Friday, February 14, 2014

Do you Engage Your clients in a True Risk/Benefit Analysis in Mediation?

jan frankel Schau     In the theme of Valentine's Day, I attended a networking meeting of a group of lawyers today who almost  uniformly reported that what they loved about their jobs was bringing solutions to their clients who presented them with a wide array of legal problems, ranging from tax indebtedness to estate planning to white collar crime to divorce.

     In mediation, my experience is that few lawyers take the time to objectively analyze the risks and benefits of proceeding with the lawsuit which they have been engaged to zealously prosecute by clients who are less well equipped to analyze the risks and benefits associated with litigation.  Enter the diplomatic mediator who can help analyze the unspoken risks, the non-monetary benefits to your client.

     A sensitive and professional third party neutral can assist you and your clients in that difficult conversation which you may have fastidiously avoided since the client hired you.  What does success look like and how much is your client willing to sacrifice or risk to get there?
P.S.:  I am now blogging on my own website.  Please look for future entries at:

Friday, February 7, 2014

Is it possible to be Multi-Partial, not Impartial in Mediation?

     Sometimes I feel like I am being torn in two.  My "empathy" quotient goes up so high that I truly feel like I am on each side of the dispute I am mediating for the time I am in each room.  Then when I go into the other room, the other side wins me over completely.  Is this the kind of neutrality that is effective to settle disputes?  How do others keep themselves from being multi-partial, or is it actually a good quality to have when the facts or issues call for it?
     Last week, I mediated a dispute arising out of an allegation of disability discrimination by a long-term employee against a small business.  I empathized with the Plaintiff, because she had loved the job and got no full or legitimate explanation for why she was terminated, leaving her lawyer to conclude the stated reason of insubordination was pretextual and the real reason was her recent diagnosis of an old injury, which now required surgery.  In the other room, I truly empathized with the employer, whose office manager had made a quick decision in reaction to an argument with the employee and who now was looking at paying many multiples of the Plaintiff's salary to avoid a trial on this case.
     I am confident that at the end of the day, both clients and both lawyers saw me as their champion--and the key to a successful negotiation.  I was able to confidently reassure them that the result was fair in the scope of the litigation before them.  But is that what neutrality is supposed to look like? Is a mediator supposed to remain neutral and impartial or is it actually more effective to be "multi-partial"?