View from the Middle of the Road: A Mediator’S Perspective on Life, Conflict, and Human Interaction

2013 by Jan Frankel Schau. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse 02/12/2013

ISBN: 978-1-4817-1007-7 (sc)

ISBN: 978-1-4817-1006-0 (hc)

ISBN: 978-1-4817-1005-3 (e)

Library of Congress Control Number: 2013901223

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CONTENTS

About The Book

Acknowledgements

Looking at Conflict from the Middle of the Road: Overview and Introduction

SECTION ONE:   PREPARATION FOR EFFECTIVE MEDIATION

Chapter 1:   Donna Bellavista and the View from the Top of the Hill

The role of ethics in a neighbor-neighbor boundary dispute is critical to resolving these difficult conflicts.

Chapter 2:   Romeo’s Ristorante and the Disgruntled Waitress

The effective use of briefs and marshaling evidence can make tremendous impact in a sexual harassment claim.

Chapter 3:   The Bipolar Plaintiff Who Needed a Second Opinion Before Accepting His Severance Package

All disputants must exercise caution and care when one of the parties is severely emotionally disturbed or psychologically disabled.

NOTES:   SECTION ONE: MEDIATOR’S TOOLS USED TO PREPARE FOR EFFECTIVE NEGOTIATION

SECTION TWO:   SURPRISES ARISING DURING THE MEDIATION PROCESS

Chapter 4:   Family Secrets and the Rights to Papa’s House

Family secrets are bound to surface in probate or inheritance disputes, giving rise to the need for sensitivity and discretion.

Chapter5:   The Single Mom Who Missed Her School Family

For clients, it is not always about the money when their family’s well-being and happiness are at stake after a wrongful termination based upon inaccurate information.

Chapter 6:   The Music Attorney Who Could Not Sing a Note

Every participant needs to be accountable for his own conduct in mediation, especially when it revolves around a claim for damages and repairs to an attorney’s own home.

NOTES:   Section Two: Key Mediator’s Tools to Deal with Surprises

SECTION THREE:   STRATEGIC WAYS TO GET TO YES

Chapter 7:   We Need to Talk: The Midlevel Manager Who Was Fired while on Stress Leave

Mediation takes courage and a willingness to confront the former employer if the issues are to be fully resolved.

Chapter 8:   Recovering Bad Investments in a Bad Economy

Lawyers don’t help their clients if their own emotions and interests get in the way of problem solving.

Chapter 9:   Call Security!: Handling Extreme Emotional Flareups

All participants need to allot enough time for the aggrieved parties to express their emotions and to allow them to regain some control of their situation before letting it go.

NOTES:   Section Three: Strategic Tools Used During Mediation for Getting to Yes

SECTION FOUR:   GETTING ULTIMATE RESULTS

Chapter 10:   Who Are You Calling Old?

Objectivity can cloud everyone’s view in an age discrimination claim, confounding the ability to negotiate without personal bias.

Chapter 11:   We’re Here to Engage

A failure to engage in the interactive process in the case of a disability discrimination lawsuit may have an adverse impact throughout the litigation process.

Chapter 12:   Re-Charging the Batteries

An assault and battery by a store security guard after observing a petty theft can create mutual distrust that will permeate the mediation hearing.

NOTES:   Section Four: Mediator’s Tools for Getting Ultimate Results

Master Appendix

About the Author

Dedication

"The real voyage of discovery consists not in seeking

new lands but seeing with new eyes."

Marcel Proust

To my husband, Michael, my anchor and compass

To my parents, Bette and Arthur, models of open-mindedness and adventure

To my children, Rachel and Jeremy, Zachary and Jordan,

Who expand my perspectives every day

Praise for View From the Middle of the Road

Jan Schau’s book reads like a personal journal, offering us a peek backstage at what goes through the mind of a dedicated mediator. Recommended reading for all students of the field.

Jeffrey Krivis, First Mediation Corporation

With the heart of a true peacemaker, Jan Schau displays her caring and competence at the table to share her practical tools and trade secrets with the mediation community. Every conflict resolution professional and student of mediation should read this book and draw upon its wisdom on behalf of the people that we serve.

Forrest (Woody) Mosten, Mediator and Collaborative Lawyer, Adjunct Professor of Law, UCLA and author of Mediation Career Guide and Collaborative Divorce Handbook

"Litigating vigorously includes participating in an effective and productive mediation. Jan Schau’s View from the Middle, gives meaningful insight to the process, and provides litigators with tools and knowledge in order to maximize our clients’ goals and achieve the most success for them through the mediation process."

Shelley Kaufman

Geragos & Geragos

Jan Schau skillfully deconstructs mediations by revealing how the circumstances, factual and legal postures and personalities affect both the mediation process and the outcome. She clearly explains how mediators, attorneys and their clients can achieve the most optimal results.

Eleanor Barr, PMA Dispute Resolutions, Los Angeles, California

This unusually frank and engaging addition to the growing body of mediation literature treats readers to a fascinating dissection of disputes by a skilled mediator who is sufficiently confident to discuss both matters that turned out well and those that didn’t. Throughout these engaging stories, scores of tools and lessons for mediators are described, as well as additional lessons and tools for advocates in mediation. An interesting and valuable book for everyone curious about what happens behind the veils of mediation confidentiality!

Keith Seat, JD, Mediator and Editor,

Mediation News for the 21st Century

ABOUT THE BOOK

Every day in mediation offices around the world, parties come together to tell their unique story as it relates to a conflict in their lives. In a single, prescient day, they expect to end their pending litigation. Sometimes the resolution requires money. Other times it requires an apology, an explanation or an agreement to put the conflict behind the disputants and move forward in peace. Sometimes, it just requires an impartial set of ears, an open heart and a willing third party to lead the way with dignity, decency and humanity. Such is the life of a mediator.

The mediator is the glue: the compassionate ear that can listen deeply and find the connections between the two stories. While lawyers are trained to fight for the rights of their clients, mediators are trained to look for the validity of both points of view. It is, indeed, a different perspective.

View from the Middle of the Road is a highly entertaining collection of mediation stories based upon a year of self-reflective analysis by author and prominent Los Angeles mediator, Jan Frankel Schau. The stories are intriguing, endearing and sometimes infuriating. The author takes the time to describe her bird’s eye view and illustrate specific Mediator’s Tools used by her in each dispute. Students of mediation, disputants and their counsel and Judges will find these tools incredibly useful and insightful.

Where parties have a seat at the negotiating table and can be fully heard with compassion, an open-mind and an open heart, the implications for peace-making extend far, far beyond the litigated case. That is Jan Frankel Schau’s View from the Middle of the Road: A Mediator’s Perspective on life, conflict and human interaction.

ACKNOWLEDGEMENTS

This book was inspired by Eric Galton’s presentation at an American Bar Association Conference on Dispute Resolution about Stories Mediator’s Tell (ABA Section of Dispute Resolution, 2012). Eric and Lela Love inspired me to tell my own stories. I am grateful to them and to the early editorial input from Rick Pazkiet of the ABA Dispute Resolution Section, Jason Rosencrantz, Kimberly Wagner and the folks at AuthorHouse.

Kai-Yuan Albert Ryan designed the graphics for the cover and the manuscript and readily understood the concept behind the View. His talents and creativity will take him far and I am thankful that we were able to work together to give vision to my words. The photograph is by Sammy Davis, who made modeling for this occasion fun and made me feel good about coming out of the shadows and into the light.

I am grateful to my fellow comrades at ADR Services, who bolster me up each day and offer me their own solidly grounded perspectives, even where they differ from mine. I am especially grateful to Lucie Barron, owner of ADR Services, Inc., who brings cheer and Aussie sunlight to every working day.

I want to thank my friends in the International Academy of

Mediators. Your achievements and twice-yearly perspectives on best practices have provided me with enormous insight, courage and camaraderie. And to my local family of mediators at the Southern California Mediation Association, I am eternally grateful for your support and embrace.

I have been blessed to have wonderful teachers and mentors throughout my journey in mediation, and I want to specifically thank and acknowledge Lynne Bassis, Therese White, Jeff Krivis, Forrest Mosten and Steven Sauer for opening the curtain to show me the brilliance of this new system of justice through Alternative Dispute Resolution. I have never looked back.

Finally, I wish to thank my clients and their clients, who, for the past ten years, have graciously invited me to share a critical day in their lives and then permitted me to publicly reveal the details of the day in service of teaching others how to serve their clients best.

LOOKING AT CONFLICT FROM THE MIDDLE OF THE ROAD: OVERVIEW AND INTRODUCTION

On September 14, 2001, as the United States observed a moment of silence in memory of those who lost their lives in the 9/11 attacks that week, I was taking the deposition of a devilish defendant who had chopped down trees on his neighbor’s property. When the sirens sounded, his lawyer was boisterously objecting to my last question and refused to observe that moment, even while the skies outside my office window were eerily void of air activity.

A couple of months later, a former client whom I had represented in a wrongful termination case returned to my office with a retainer check, asking me to defend him in an unfair competition claim that had just been filed against him by his former employer. He had promised not to go into competition with his former company for one year in exchange for a handsome settlement of his employment claim. Yet this was just six months after that contentious dispute had been settled. I contacted the company’s lawyers, whom I knew well from the prior litigation. They did not want to discuss settlement yet: they had been paid a more generous retainer than I had requested and wanted to spend it in litigation first!

Clearly, everyone in America was affected by the events of 9/11, but the effect on me was truly to develop a new perspective on life, conflict, and human interaction. This triggered the beginning of a very personal, emotional journey that led me to give up the life of a hard-driven litigator and to pursue mediation, peacemaking, and dispute resolution as a second career.

Ten years later, as I sat in an audience of professional mediators and lawyers on my birthday in Denver, Colorado, it occurred to me that we are all in this complex system of conflict resolution together. Yes, we approach it differently: some with a determination to evaluate claims and damages with a view toward arriving at truth and justice, and others with a facilitative approach toward dialogue, reconciliation, and even transformation.

Indeed, it takes perfect pitch of this orchestration to achieve all of those goals in a single mediation session. When one of the participants is out of tune, all of the others need to adjust to carry out the objectives of the day. It is not always successful. To achieve that perfect pitch, we mediators really need a trained ear for listening and a great appetite for practice, together with a stomach for an occasional lapse, leaving the litigants to lay their disputes before a judge or jury.

Many will say that the ultimate objective of the mediator is to achieve a settlement, whether fair or unfair, just or unjust. Most mediators will tell you otherwise. For most of us, it is about assuring a fair process. Yet few of us sleep well on the nights when the outcome has, upon reflection, seemed to us to be unfair or one-sided.

This book is about hearings that have led to my own self-reflective analysis. Mediation is about balancing the timing, the facts (both known and unknown), and the evidence as against or together with the personalities of both clients and their lawyers. It reflects a measure of the needs of the clients and lawyers (to be heard, to settle quickly, or both, for example) and the appetite of each side to accept the risk of trial. It is often colored by economics. Can the litigants afford to finance further litigation? Can they afford to pay a settlement in the range that is being discussed? Can they survive an adverse verdict? Can they collect on a judgment?

This book is for students of mediation, attorneys who are engaged in litigation and are considering mediation, law students who will undoubtedly be participating in mediations long before trial, and corporate counsel as well as clients who are facing mediation in their civil disputes.

I have organized the book in four parts, roughly referencing the chronologic order of mediation: preparation, process, strategy, and results. Within each chapter is a set of tools, each derived from a mediation over which I presided. I highlight the lesson in the title of the chapter. I then provide a narrative based upon the story behind the conflict. Finally, I reflect upon each negotiation and draw out my perspective of what went right and wrong. Each section is followed by a list of the Mediator’s Tools which I describe briefly in the Notes. The Master Appendix is a compilation of all of the Tools in the book for your convenience.

A Word on Confidentiality

One of the hallmarks of mediation is strict confidentiality. My own agreement to mediate provides for a waiver of this rule with respect to examples used in teaching, lecturing, and writing, as long as I have masked the true identities of the participants. I have tried hard to do that here. Any similarity in facts or personalities is meant to depict an archetype rather than present a true recitation of a particular case. Most of these examples have been intentionally disguised or fictionalized in order to protect confidentiality. I have also sometimes significantly changed the values in settlements where that becomes a part of the narrative. I hope no participant will feel I have betrayed his or her confidence, should any read these narratives.

But the confidential nature of mediation goes deeper, and the complications in writing and teaching about it go further. Because our work is so highly confidential, we rarely have an opportunity to learn how other mediators handle their cases, how lawyers may obfuscate the justness of the outcome, or how certain personalities among clients may help or hinder the process. We are so well trained to preserve confidentiality that this kind of frank discussion rarely comes up. And lawyers are equally constrained from discussing the process, their strategy, or the outcome of a particular dispute when it has been mediated. This makes teaching and learning about the process a challenge, to say the least.

For this reason, this book is written in a format of mediator tells all. I hope that it will resonate with other mediators and reveal deep secrets to litigants, who may not be able to see the mediator’s perspective from their sequestered caucus rooms. While I can only earnestly offer the mediator’s perspective, I also hope to highlight effective negotiation techniques that I have observed among lawyers so that litigants can also learn from these stories.

A Few Words on Multicultural Communication

I live in one of the most diverse cities in the world. Los Angeles has become a melting pot of Hispanic, Asian, European, and African American residents—working and living side by side, often with challenges in communication on every level.

When there have been salient multicultural participants, I have revealed that fact in describing the identity of the cast of characters, though in most circumstances I have changed the culture to protect against both identification of the case and against the appearance of prejudicial typing of a particular race or culture.

Still, because of the presence of so many cultures in these disputes, I felt it crucial to at least suggest that some of our conflict arises out of these differences—and always at least one of the keys to resolving conflict between various cultures is to listen, learn, and attempt to better understand each disputant’s unique core framework.

A Final Word on the Benefits of Self-Reflective Analysis

I started this book with the purpose of disciplining myself to write a chapter each week so that I could have a full year’s perspective at the end when it came time to publish. But what I got was much more than that.

The practice of deliberate self-reflective analysis of at least one case per week became something I looked forward to. Just as weekly prayer or yoga practice offers a chance to breathe deeply and be introspective for a time, writing this book gave me the opportunity to look deeply and more thoughtfully at the approach taken to a particular conflict and the reasons why it worked or didn’t work.

And there is more. Occasionally, mediators struggle, whether with a failed negotiation or an outcome that feels unfair. For me, the process of self-reflective analysis also offered a step toward self-forgiveness. I am not saying I let myself off the hook, but I definitely found multitudes of reasons why something was effective or not, just as the orchestra analogy would suggest.

Where one instrument was out of tune, another could have picked up the melody or quit playing altogether. Conflict resolution is not a solitary sport. It takes collaboration, cooperation and a coach who is willing to guide the parties in dispute towards coming together. All parties eventually need to be willing and desirous of achieving a settlement if it is to be both lasting and satisfying for all participants.

My weekly analysis offered some real-time observations that I may not have made note of if I had not anticipated writing about the mediation on the following weekend. Sometimes I could not see the personality flaws until I reflected upon them. For example, the bank teller who showed up late and then made up an incredible story about parking his car at a different shopping center and taking the bus to my office was an obvious tip-off that his employer may also have had some challenges believing that the teller was not related to the gentleman he called Uncle Joe and to whom he loaned money.

Sometimes anticipating the title of the chapter, as in The Music Attorney who Couldn’t Sing a Note or Who Are You Calling Old? caused me to smile as I eagerly awaited my writing session, even as the facts and personalities were still revealing themselves to me.

Another time, I struggled to figure out why a litigant had accepted so little money in a settlement, only to learn later that her lawyer was unable to front the costs of going forward. Together, they had decided to abandon the lawsuit if they were unable to settle.

For me, writing this book was a very personal self-reflection on my own emotional journey. Listening to people’s stories, feeling the pain of the wrongs, injustices, expenses, and discomforts of the litigation process through my clients has forever changed me. Over twenty years in litigation taught me to research the law and then zealously argue the facts on behalf of whomever had retained me to be their advocate. I was never trained in, nor did I ever consider truly listening for another perspective. I never looked for the other side’s point of view. Instead, as any decent attorney has been trained to do, I got busy researching the ways in which the facts and circumstances favored my client.

Initially, it was a struggle against my instincts not to sway the resolution in a way I believed was just or at least represented the likely outcome at trial. I wanted to achieve fairness and justice for whichever side I perceived as the more righteous.

As time has passed and I have gained more experience, I have come to realize that there are reasons that may never be revealed but that represent their own intrinsic value in settling a dispute. I have come gradually to let go of the conflict, just as I counsel each disputant to do as settlement papers are drawn. I have come to make peace with the concept that peace offers its own reward.

Humbly, I offer the optimistic perspective that if all conflict were brought before a neutral, compassionate listener who promised to listen deeply and refrain from manipulating any particular outcome, the implication for a global peace could be simply astounding.

It is my hope that the readers of this book will find kernels of wisdom not only from the mediator’s perspective, then, but also from the deliberate self-reflective analysis that I hope this book will trigger in each of you. I give a series of lectures on Winning Your Case Without Going to Trial. I believe in the process of mediation as the way most civil and hopefully some criminal legal disputes will be resolved in the future. In many jurisdictions, including Los Angeles, more cases are settled through mediation than tried before a judge or jury. This is a trend that will only continue to build and spread internationally.

On the last day of my constitutional law class some thirty years ago, my professor, Gerald Uelman, said words to the effect of, Criminal justice in this country is an imperfect system, but I believe in most instances it is the most just and fair system in the world. I’m not certain I agree that the criminal justice system in America is the most just in the world, but I do believe that it’s possible to gain the best possible outcome for disputants through the voluntary process known as mediation, if each stakeholder is offered a seat at the negotiating table and a voice in the ultimate outcome.

That is my perspective. What follows is the explanation of why.

SECTION ONE

Preparation for

Effective Mediation

CHAPTER 1

Donna Bellavista and the View from the Top of the Hill

The role of ethics in a neighbor-neighbor boundary dispute is critical to resolving these difficult conflicts.

In this neighbor-neighbor dispute, Donna Bellavista brought a lawsuit against her neighbors, Kamran and Jasmine, for encroachment upon her property. She had discovered the encroachment when a third neighbor had surveyed the land in order to build a swimming pool. Kamran and Jasmine, who had just moved in the year before, had a large, old gate and steps going up to their home. These were apparently built on property within Donna’s lot line. None of them had known of this before the survey by the third neighbor was done.

Additionally, in the backyard, Kamran and Jasmine had recently removed about six mature oak trees from what they thought was their property in order to build an outdoor deck and fireplace, which they lined with attractive young bamboo trees. When the oak trees were removed, Donna got angry and sought legal counsel to determine her remedies. She was pleased to find out that destruction of trees could give