tag:blogger.com,1999:blog-51401293949662643102024-03-05T21:26:04.118-08:00Schau's Mediation InsightsJan Frankel Schau provides insights based upon her mediation practice in Southern California. After over two decades of litigation, Schau has successfully transitioned into an inspired and satisfied peacemaker. Although she specializes in employment litigated cases, she stands poised to mediate any type of dispute that involves people, positions, emotions and energy!Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.comBlogger123125tag:blogger.com,1999:blog-5140129394966264310.post-25590619638849051492012-04-21T17:56:00.000-07:002012-04-23T20:37:00.690-07:00Announcing a New Blog: View from the Middle of the Road: A Mediator's ProspectiveJan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-79856797553985557792012-03-26T11:29:00.003-07:002012-03-26T11:38:13.593-07:00Meet M. Laurie Murphy<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiC1tczdzb0BEAyNcJ7OC6Z0IKPr3Q-xFhUpKmpJUFGavFjVcddvCHnXTCVw1BsOzh-9mqEfVCJp896uNiCJ1wMMfF5e9vdiLWjr3TJU2NcObvvJ4FHSiKo6eE8QJUoezH_xquuOhyphenhyphen9X9U/s1600/Murphy-M.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 134px; height: 200px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiC1tczdzb0BEAyNcJ7OC6Z0IKPr3Q-xFhUpKmpJUFGavFjVcddvCHnXTCVw1BsOzh-9mqEfVCJp896uNiCJ1wMMfF5e9vdiLWjr3TJU2NcObvvJ4FHSiKo6eE8QJUoezH_xquuOhyphenhyphen9X9U/s200/Murphy-M.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5724275374920086002" /></a><br />HIGHLIGHTING THE 97% OF LITIGATORS WINNING CASES WITHOUT GOING TO TRIAL<br /><br />INTRODUCING M. LAURIE MURPHY, Principal, Valensi, Rose, PLC<br /><br />Jan: Laurie, give me some background about your experience.<br />Laurie: I’ve been a litigator with the same firm since 1989. my undergraduate degree is in civil engineering in which I also have a masters degree. Before going to law school, I was a civil engineer, but I went to law at night school a couple of years later. I have always maintained an interest in real estate and construction.<br /><br />Jan: Can you give me an example of a case in which you were able to avoid a trial and still get a great result for your client?<br />Laurie: Yes. Recently, I represented a partner in a real estate venture where the two parties were disputing over the acquisition, construction and carrying costs of a multi-million dollar home that they were building as their primary residence. They invested in the property together after a long term romantic relationship. Unfortunately, they broke up right after the construction of the home was completed. Even more unfortunate, the original agreement between them did not include a mediation clause and in view of the huge financial stake as well as the highly emotional nature of this dispute, we couldn’t get the matter settled for quite a while. <br /><br />Jan: What was the strategy you took to get the matter settled?<br />Laurie: I tried to get the parties to mediate before the lawsuit was filed, but the attorney for my client’s former partner refused. He filed a lawsuit instead and he was not approachable so we really didn’t talk about settlement for the rest of the time that he was representing the Plaintiff. After he was substituted out and a new attorney was brought in, we participated in a Court ordered mediation but unfortunately that failed.<br /> <br />The issues were complicated and although we participated in a full day private mediation before a retired Judge, both sides left disappointed because it felt like the Mediator didn’t want to “get down in the trenches” and really dig into the accounting issues as well as the legal ones. Although the mediation didn’t result in a settlement, we were able to keep the lines of communication going between counsel thereafter. He’s a reasonable guy and I’m also reasonable, so we kept talking and meeting and narrowing the issues. We had several meetings and lots of emails back and forth including getting our accounting experts involved in an effort to narrow the issues and minimize the prolonged pain of the litigation.<br /><br /> Following the mediation hearing, and with the court’s indulgence, we agreed to stay formal discovery and obtained stipulated continuances for both trial and motion dates. As mentioned, we met informally with the parties present as well as our experts to discuss the issues. With an attorneys fees provision, we all knew there were huge financial as well as emotional obstacles to settlement, but both sides wanted “stop the bleeding”. Their personal lives were being impacted by the time and energy as well as financial resources they were committing to resolve this dispute and it was clear that both of them wanted to move on.<br /><br />Jan: How did you or your client come up with the “Winning” idea that lead to the settlement?<br />Laurie: There was an apparent and painful logjam between our clients and opposing counsel and I knew that both of our clients wanted help out of it. When opposing counsel and I met with our clients the last time, we came up with an idea to make a “joint counsels' proposal” (akin to a mediator’s proposal) which both of us considered to be a fair compromise. I can't recall ever having done this before, but both of us thought it might work and we felt we understood the issues better by now than the mediator had at the hearing. The issues were complicated and somewhat diverse, but instead of further polarizing the parties, counsel and I came up with a comprehensive list of terms the major one being a method to jointly market the property. <br /><br />Jan: Why was it so effective?<br />Laurie: The initial “joint counsel proposal” ultimately lead to a meeting between the clients only. They finally had a good starting point to tweak the terms of the joint proposal until they reached an agreement on all of the various terms. When they circled back to us, we added a proposal that an arbitrator be appointed to resolve future controversies on very short notice if necessary while the parties were marketing the property. This gave both sides the comfort necessary to go forward with the deal despite the uncertainty that is ever present in real estate sales. Though there is still a fair amount of distrust between the parties, because counsel and I worked together to come up with a creative but fair proposal, the parties felt they were protected and could move forward.<br /><br />Jan: What was the turning point that allowed the case to settle and avoid a trial?<br /><br />Laurie: this was a case that should never have been filed in the first place but unfortunately one does not get to choose opposing counsel. And again unfortunately a lot of time and money was wasted during the time he was in the picture. But, once prior counsel substituted out and a new, more rational counsel was brought on board, after our first conversation, I knew I could develop a line of communication upon which I could build. It took several meetings and some mutual trust in one another to get to the proposal. Also, the fact that the Court was willing to continue our trial and agree with the stay of discovery really helped us focus on settling instead of posturing the case for trial. In actuality, it was very pragmatic—just unusual. Also, I have to say that our mutual disappointment with the outcome of the mediation lead us to thinking about creative ways that we could step in as counsel to mediate the dispute in some workable way. I really didn’t know if it would be accepted by the clients, but they did agree to our proposal ultimately.<br /><br />Jan: Was there an “aha” moment that resulted from avoiding trial and settling the case?<br /><br />Laurie: Listen, my client is a wealthy individual who does not litigate for a living who has plenty of other businesses, hobbies and interests and who was anxious to get on with life. <br />Jan: Laurie: You are litigating like crazy. What to you do for fun? <br />Laurie: I'm a horse fanatic. I have two dressage horses. I take lessons on them every weekend and compete from time to time.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-74358981711062829882012-02-17T15:10:00.000-08:002012-02-17T15:19:51.740-08:00Introducing Karina Sterman<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEizAua_4i7fyrrBmxiSJJsMJIIiaoo9_LE-iqYP7cIRd3TbAJCWUTf2Bbs08vfpQraESdCzvSZPBtalmeqsiC2noyRjnvFN37kjCMwL9SlxAq3qh8WwLb3P4H09z3W4BazAKBQtxS_SCtw/s1600/Karina.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 166px; height: 124px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEizAua_4i7fyrrBmxiSJJsMJIIiaoo9_LE-iqYP7cIRd3TbAJCWUTf2Bbs08vfpQraESdCzvSZPBtalmeqsiC2noyRjnvFN37kjCMwL9SlxAq3qh8WwLb3P4H09z3W4BazAKBQtxS_SCtw/s200/Karina.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5710246121469888466" /></a><br />As a part of the 97% Series of Interviews, I loved this one: Read on about Karina Sterman's classic move towards a sophisticated business dispute: can you say "lunch"?<br /><br />The most recent statistics available indicate that 97% of cases that are filed in Superior Court never get to trial. How do they get resolved? This column explores the unique and intuitive ways in which a dozen prominent women litigators have made that happen. The reader may judge for him/herself whether the gender of the handling attorney in any way contributed to the outcome, but my hypothesis is that with so many prominent women in litigation in 2012, there’s a different, perhaps more pragmatic and some may say even “gracious” way of waging war today.<br /><br />Here you will find some of the most fascinating “war stories” uniquely told by select women who have demonstrated both bravery and sensitivity in addressing their clients’ needs and desires.<br /><br />MEET KARINA STERMAN, PARTNER, ERVIN COHEN & JESSUP LLP:<br /><br />Jan: Karina, how long have you been practicing litigation in Los Angeles?<br /> Karina: Since 1997. I started my career in Securities Litigation, but joined Ervin Cohen as an associate in 2000. <br /> <br />Jan: What was the most notable case in which you were able to avoid a trial and still get a great result for your client?<br /> Karina: The most notable is usually the most current. I was the lead counsel on a complicated Intellectual Property case recently, which involved about eight defendants. We were all ordered to a “mandatory mediation” in the beginning of the case but that simply led to a cycle of posturing and each side assuring the other that it was going to prevail. The case had millions of dollars at stake and we left that 1/2-day session further apart in terms of settlement and even more eager to go to trial and win!<br /><br />Jan: What was the strategy you took to get the matter settled? <br />Karina: After the initial mediation session, the litigation got really heated. There were numerous depositions, volumes of written documents exchanged, third party subpoenas, the works! At a pivotal moment in all of this, my client realized he just wanted to go back to running his business and finally said to me: “Settle this.” That’s what I was waiting to hear. I immediately called the opposing counsel and told him his clients could either deal with a forthcoming motion for summary judgment or consider coming back to settlement discussions. He informed me then that, unbeknownst to me, our clients had been attempting to discuss settlement throughout the litigation process but had only managed to further polarize each other and completely eradicate any trust between them as a result of increasingly mounting acrimony and bravado. When I heard this, I knew I had to try something different. Before we could even begin to have settlement discussions, we needed to rebuild trust and communication. So, I decided we should all meet in a neutral place and on a purely social basis. I knew these guys had worked together for 11 years. They knew one another’s families and certainly could have a conversation about something other than the lawsuit. So I invited the other side to lunch.<br /><br />Jan: How did you come up with the idea?<br /> Karina: I try to think creatively and remember that every lawsuit is not just about the dispute but often also about perspectives and emotions. I feel strongly that people in dispute, whether they are my clients or are suing my clients, deserve to have dignity brought back into the process. If you treat people with dignity, and allow them to keep their pride intact, even if you disagree, you are more likely to reach a resolution. I also know that most cases end up settling, so I felt strongly that we needed to preserve that bridge and if the clients had already damaged it, we needed to restore some trust before we could resume any discussion of settling the case.<br /><br />Jan: Why was it so effective? <br />Karina: As part of my invitation to lunch, I let the other side pick the location and I assured everyone that I was buying! I also created a set of written “ground rules” that both sides had to agree to as a condition to this lunch. I got input on those from opposing counsel and then we circulated them to our clients and received their commitment to stick with those rules. For example, the rules indicated that there be no posturing, no talking about the merits of the case, no threats. I was told that the only reason the opposing party agreed to attend is that I was going to be there; I learned that they felt I was the only “civilized” attorney at the table.<br /><br />Jan: What was the turning point that allowed the case to settle and avoid a trial?<br /> Karina: My client thought the lunch was nice but was cynical by this point in the case and they didn’t think it would lead to any progress. I completely disagreed. Thankfully, very soon after the lunch, I received a gracious thank you note from opposing counsel and then an actual settlement demand. Though we were still far apart, this allowed us to begin negotiations and maintain a constructive dialogue. We reached a settlement within the next two weeks. Before that lunch, this was not in the realm of possibility. <br /> <br />Jan: Did you or your clients have any regrets? <br />Karina: Absolutely not. Although, I do love to try cases—so there is always a little personal disappointment when another case clears off my desk. But that’s the way it should be.<br /><br />Jan: Was there an “aha” moment that resulted from avoiding trial and settling the case?<br /> Karina: Yes! There is always an “aha” moment in a litigation. (Karina gives me a mischievous wink and reminds me that the details are confidential as the case is still on going with the other defendants).<br /><br />Jan: Do you think that being a woman made a difference to how this case was handled?<br /> Karina: I don’t know, but several people involved in the case, both on our side and on the opposing side, pointed out that I was the only woman in the litigation and that it helped. I’d like to think that it had something to do with the success at the end of the day.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-55464967063382072662012-01-27T20:24:00.000-08:002012-01-27T20:24:53.955-08:00Jan Schau Lawyer in Los Angeles, Alternative Dispute Resolution Attorney CA : Super Lawyers<a href="http://www.superlawyers.com/california-southern/lawyer/Jan-Frankel-Schau/458f117f-db30-4dc2-af82-b7ee0fe8dc51.html">Jan Schau Lawyer in Los Angeles, Alternative Dispute Resolution Attorney CA : Super Lawyers</a>Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-78279897740934201442012-01-14T15:13:00.000-08:002012-01-14T15:31:18.002-08:00Introducing The 97% Series<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg0HSpxKwVrWQx4qcElgmFG76zJ6v4HNRx3AjeSt_TaGGj1M_UbrAupuTy3ibKIKbl3h_VQZTRfLQt13I1_jMDFPkiMCZajhu35fYtlQz2C0lFr2SYcgi9ZWNlz2vJD8Af-qUnrfrxriP0/s1600/Robyn.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 80px; height: 80px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg0HSpxKwVrWQx4qcElgmFG76zJ6v4HNRx3AjeSt_TaGGj1M_UbrAupuTy3ibKIKbl3h_VQZTRfLQt13I1_jMDFPkiMCZajhu35fYtlQz2C0lFr2SYcgi9ZWNlz2vJD8Af-qUnrfrxriP0/s200/Robyn.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5697631984153910498" /></a><br />It occurs to me that since 97% of cases filed never get to trial, there are lots of brilliant trial lawyers and litigators who must have "seen the light" and found ways to resolve their cases and still make headline news. Why? Because that's what clients want their lawyers to do! This year, I will be writing a regular monthly interview of a dozen of these local heroes for the Women Lawyers of Los Angeles Newsletter. Here is the first of the series:<br /><br />HIGHLIGHTING THE 97%:LITIGATORS WINNING CASES WITHOUT GOING TO WAR<br /><br /> After 20 years of practicing litigation and ten years as a mediator, I have reached the conclusion that most clients come to their lawyers not to “win a case” but to resolve some conflict they are experiencing, or to right some wrong that has occurred in the most efficient way possible. As my late friend and mentor, Richard Millen, was fond of saying, “People don’t come to their lawyers with legal problems, they come to lawyers with human problems. Lawyers make them into legal problems by fitting them into a particular cause of action or set of legal defenses.”<br /><br /> The most recent statistics available indicate that 97% of cases that are filed in Superior Court never get to trial. How do they get resolved? This column will explore the unique and intuitive ways in which a dozen prominent women litigators have made that happen. The reader may judge for him/herself whether the gender of the handling attorney in any way contributed to the outcome, but my hypothesis is that with so many prominent women in litigation in 2012, there’s a different, perhaps more pragmatic and some may say even “gracious” way of waging war today.<br /><br /> Here you will find some of the most fascinating “war stories” uniquely told by select women who have demonstrated both bravery and sensitivity in addressing their clients needs and desires.<br /><br />MEET ROBYN CROWTHER, Shareholder, Caldwell, Leslie and Proctor<br /><br />Jan: Robyn, how long have you been practicing litigation in Los Angeles?<br />Robyn: Since 1997. I practiced with Gibson, Dunn for a year and then took my position at Caldwell, Leslie. I was made a shareholder just after I delivered my first (of 3) daughters.<br /><br />Jan: What was the most notable case in which you were able to avoid a trial and still get a great result for your client?<br />Robyn: I represented Obey Clothing in litigation with the Associated Press. It was a part of the larger dispute between Shepard Fairey and the Associated Press about copyright infringement during the Obama campaign. AP sued Shepard Fairey, the graphic artist and my client, Obey Clothing for copyright infringement, claiming that the artist used a photo of Obama owned by AP, earning multi-million dollars on the image.<br /><br />Jan: What was the strategy you took to get the matter settled?<br />Robyn: A little background. The Associated Press sued Shepard Fairey initially and only brought in Obey Clothing, the exclusive licensee of Shepard Fairey about eight months after they brought the initial action. From the outset, our clients took our advice and aggressively litigated the case pre-trial in order to set it up for a Summary Judgment motion. We had a joint defense agreement with the artist, and were planning to join in a Motion for Summary Judgment, which was due on January 6, 2010. On January 2, 2010, we were notified that Shepard Fairey had reached a settlement agreement with the Plaintiff. We had to work round the clock in a team of 3 or 4 lawyers to get our motion filed in time. The motion was heard in New York and the District Court Judge denied both parties motions on copyright infringement, but granted the AP’s Summary Judgment on Fair Use. It was after that ruling that I reached out to opposing counsel and called her to suggest it might be a good time to discuss settlement rather than challenge that ruling on appeal.<br /><br />Jan: How did you or your client come up with the idea?<br />Robyn: I really understood the dynamics between my client and it’s insurer by then, so I came up with the concept, but it took many, many calls and emails before we arrived at a settlement.<br /><br />Jan: Why was it so effective?<br />Robyn: I leveraged the opposing party’s win on the Fair Practices Act as a way to suggest that the settlement would benefit them because it would avoid the potential of an appeal and reversal, which may have had much further impact on the Company than this verdict if it didn’t go their way. <br /><br />Jan: What was the turning point that allowed the case to settle and avoid a trial?<br />Robyn: Although we were talking with opposing counsel every day in preparation for the pre-trial conferences, (we had even moved to New York for the trial by then), ultimately both parties seemed to recognize that the potential losses from going to trial were too great. For the AP, that was really a function of the possible appeal and reversal.<br /><br />Jan: Did you or your clients have any regrets?<br />Robyn: My clients were very pleased. Of course, it was probably the most fascinating piece of litigation I may ever participate in, so I would have loved to at least put on my opening statement! <br /><br />Jan: Was there an “aha” moment that resulted from avoiding trial and settling the case?<br />Robyn: Yes. Although the terms of the settlement are confidential, the parties issued a joint press release indicating that they were planning to collaborate on future projects, which, of course, may be of enormous financial value to all parties.<br /><br />Jan: Do you think that being a woman made a difference to how this case was handled?<br />Robyn: Once Shepard Fairey settled out, all of the lead counsel on both sides were women. I think that allowed us to dispense with some of the posturing we see and cut to the chase.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-4189094112606750392011-11-06T14:48:00.000-08:002011-11-06T15:00:16.792-08:00Thinking about the Future of Mediation<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhBt8cT6yom41jB59wINfHO1F-CLPGAuw7-O3NAaWDEj0Ic3sr5XFEzVDMTuxzbZqAZqgLZDpVxGmvhm3ZI9iOOt9fnu0ezt740GkjuTf9x8MDGKMFDERTHJHk_oHrMv2rJWcuZKnxAtwI/s1600/Crystal+Ball.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 400px; height: 265px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhBt8cT6yom41jB59wINfHO1F-CLPGAuw7-O3NAaWDEj0Ic3sr5XFEzVDMTuxzbZqAZqgLZDpVxGmvhm3ZI9iOOt9fnu0ezt740GkjuTf9x8MDGKMFDERTHJHk_oHrMv2rJWcuZKnxAtwI/s400/Crystal+Ball.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5672019324805125730" /></a>I participated in an excellent conference yesterday for the Southern California Mediation Association, "Expanding Horizons, Expanding Opportunities" during which Keynote Speaker, Woody Mosten invited us to consider the state of mediation in 2030. It was an exciting dialogue with ideas ranging from a "Public Mediator" corps, similar to the Public Defender's office to an emergency line, where the first call in case of conflict would be to a local mediator. I was also made to consider that the "Elders" of the future will be those who fought for civil rights in the 60's and may well entertain engaging in more inclusive, collaborative processes than the elders of the last generation. Catching up with lots of colleagues and friends at a spectacular setting out in Malibu made for an invigorating, motivating day. Kudos to SCMA and all of the presenters and planners for an exceptional professional conference. P.S.: If you missed my presentation on Mediation, Ethics, Neutrality and Confidentiality, which I renamed "Dirty Little Secrets", send me an email and I'll fill you in.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com2tag:blogger.com,1999:blog-5140129394966264310.post-74045566940051437482011-11-03T11:16:00.001-07:002011-11-03T11:28:14.219-07:00The Mediator as "Silent Partner"<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgGgwlnkHWmDky2Ow0TlylevnO0QcEE8dIB-ETZLa_pf_TNR2rHqvF5WMUobklEp98uPUrWMeI2ZEXKoP-iCwmdnukAJDgA43MN4BxwSGVrN9Iy-tPN1tp4On7OGhqPZZwu8z_LMCxoqO8/s1600/Silent+Partner"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 200px; height: 196px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgGgwlnkHWmDky2Ow0TlylevnO0QcEE8dIB-ETZLa_pf_TNR2rHqvF5WMUobklEp98uPUrWMeI2ZEXKoP-iCwmdnukAJDgA43MN4BxwSGVrN9Iy-tPN1tp4On7OGhqPZZwu8z_LMCxoqO8/s200/Silent+Partner" border="0" alt=""id="BLOGGER_PHOTO_ID_5670836090822917250" /></a><br />There's been chatter lately on a variety of List serve Discussion Groups about how Mediator's can break an impasse and I have to say, I often follow my cases, sometimes daily until that log jam is broken and the case is settled. But I'm left sometimes feeling like I'm too much in the spotlight when I should be behind the camera recording the "scene" instead. For example, in several cases lately I've been asked my opinion about the following strategies while settlement negotiations are pending: how to answer discovery and when to propound it, whether to consult with bankruptcy counsel and when, whether to communicate a particular offer or rejection of a particular demand to the client now or later. Yikes! Although I enjoy the power and the challenge, I'm left questioning whether I'm becoming the Silent Partner for the inquiring counsel and whether that compromises my neutrality and impartiality in getting the matter resolved. Have we evolved to a place where we do whatever it takes to get a matter settled? Is this added value to my (lawyer) clients? Interesting queries without obvious answers.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com1tag:blogger.com,1999:blog-5140129394966264310.post-62422960590102444542011-10-16T11:10:00.001-07:002011-10-16T11:18:31.438-07:00Leaning In to Conflict<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgOXeaS6NxkmEWH1Sm1wfxj6WMUnWXFfnjxxYfWIKFkVDBe-vkxgn4_0AuyCECTlu7lEmlPdcQ08g67X79iNYtNtIni4tNBl3L-22bg2s7NiKyAWyTZJHY8M0qeBVcX8hxbOrVqUlNA5Ac/s1600/sukkot.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 320px; height: 213px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgOXeaS6NxkmEWH1Sm1wfxj6WMUnWXFfnjxxYfWIKFkVDBe-vkxgn4_0AuyCECTlu7lEmlPdcQ08g67X79iNYtNtIni4tNBl3L-22bg2s7NiKyAWyTZJHY8M0qeBVcX8hxbOrVqUlNA5Ac/s320/sukkot.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5664154219555803282" /></a><br />Last evening we spent a magical evening in my sister's Sukkah. This week marks the Jewish harvest festival where it is tradition to share our joy and bounty by inviting strangers to dine with us in impermanent tents or booths, which are decorated with fruits and vines from the season's bounty. Because the tradition is that only one wall may be used, it is often necessary to lean in to engage one another in conversation. It occurs to me that the same is true in mediation. There, the physical "leaning in" can have several beneficial effects. First, by leaning in, you can gently push up against and ultimately penetrate those fictitious walls that have been erected around the person in conflict, literally, breaking down barriers which may have caused or contributed to the conflict at the beginning. Second, you model a sense of equality, rather than authority. For example, an employer may choose to stand, or push his chair back from his desk when confronting an employee, and a Judge usually sits on a podium, elevated from those whom he or she is "Judging". Third, by sitting across from the disputant, you can echo and demonstrate your empathy in your face and body language, so that they can feel truly heard and understood. The result can be magical, just like dining in my sister's Sukkah.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com1tag:blogger.com,1999:blog-5140129394966264310.post-80860557934571397232011-09-25T19:51:00.001-07:002011-09-25T20:00:17.736-07:00Leading from the Back of the Room<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjjk9kglokCNZfpMbNoU4EncX7jUt3zAYJshtq7X8rC-8MFp9VKxatdYAMJ9DcT1tLgji0Qklt90r7GA4poNn5_gSjTC_Sukjw1Wdbuuyiz9HpXmfubfvLxMvF6_448kQ_UQoDU3MvxYSc/s1600/leadership1.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 200px; height: 144px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjjk9kglokCNZfpMbNoU4EncX7jUt3zAYJshtq7X8rC-8MFp9VKxatdYAMJ9DcT1tLgji0Qklt90r7GA4poNn5_gSjTC_Sukjw1Wdbuuyiz9HpXmfubfvLxMvF6_448kQ_UQoDU3MvxYSc/s200/leadership1.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5656495681214604802" /></a><br />I've taken a few months off from blogging during which I fear I may have become complacent with my own techniques and absorbed in a sense of competence in my mediation efforts. Then today I read about a Business leader who spoke of "leading from the back of the room" and I was struck by the notion that I had risen to the position of leadership where I take a seat which is not rightfully my own. That is an important reminder that I thought I would share. Though mediators may think we know the best way to resolve a particular dispute, leading from the front of the room can be so dangerous. Because at the end of the day, if the parties haven't come to the terms on their own, by their own volition, it may feel forced even though successful. That result is what we expect from the Court. A judge or jury may superimpose their decisions upon the parties. But mediation is supposed to be different. A reminder to lead from the back of the room--instead of the podium where the Judge sits, was really a great message for me.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-15234599618933016702011-05-22T17:04:00.001-07:002011-05-22T17:13:25.657-07:00What It's Ultimately All About<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgj9Qjx_BPDaFfQrWNEhMTdBktdRMpTUWwG9I_4oZ8N-WjQZ3QWdXRcleCZxSGYJL53JFTTQLu9M6SEc7-uYcbSfpwfuIkOMHptre-bP5Sh97yYMXvMcunGUVF3PfKx_2Xusq6v7MPVicQ/s1600/DSCN1805.JPG"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 285px; height: 400px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgj9Qjx_BPDaFfQrWNEhMTdBktdRMpTUWwG9I_4oZ8N-WjQZ3QWdXRcleCZxSGYJL53JFTTQLu9M6SEc7-uYcbSfpwfuIkOMHptre-bP5Sh97yYMXvMcunGUVF3PfKx_2Xusq6v7MPVicQ/s400/DSCN1805.JPG" border="0" alt=""id="BLOGGER_PHOTO_ID_5609696064994343250" /></a><br />Once in awhile, we all need to take a break from our day jobs to tend to our life's real work. For me, last week's Commencement from Columbia University, and this euphoric image of our youngest son becoming a College Graduate have fulfilled my life's true purpose. The insight for mediation and client's of mediation? Have some perspective. Most of the time the business disputes and litigation we're engaged in pales by comparison to what's really important in life: the health, success and dreams of our children. The Commencement speaker, President Bollinger, spoke of "The Butterfly Effect" and how butterflies flapping their wings independently can affect the environment worldwide. These young graduates, acting in their own communities, countries, businesses and professions, will undoubtedly change the world in which all of us live. I'm proud to have raised three responsible, college educated, decent, smart adults. I'm trusting them to make my world a better place. Judging from the past 27 years, I have complete faith and confidence that they'll do a great job at it!Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-55311124022936889202011-05-08T15:49:00.000-07:002011-05-08T16:06:23.925-07:00Mom: The Ultimate Mediation Trainer<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg3ZnJnn0OacMv-JesMmKYwXehDM6lSfF5wHHsrLSsJFPsa_QENGSyyu61TdFuodjVJYcg6QvFgT3WWT7d_7sQQWVdZUbeY5g9OAu8nezK7lbB2JKoSVJeY0GbBm0eXYbzEgR9xmg-llC0/s1600/DSCN1767.JPG"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 200px; height: 150px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg3ZnJnn0OacMv-JesMmKYwXehDM6lSfF5wHHsrLSsJFPsa_QENGSyyu61TdFuodjVJYcg6QvFgT3WWT7d_7sQQWVdZUbeY5g9OAu8nezK7lbB2JKoSVJeY0GbBm0eXYbzEgR9xmg-llC0/s200/DSCN1767.JPG" border="0" alt=""id="BLOGGER_PHOTO_ID_5604481638401709058" /></a><br />There's some debate about whether great mediators are born or made. I say that those of us lucky enough to have Mom's as mediation trainers provide a great model for sound mediation principles. My Mom, Bette, taught me these principles which have guided and eased not only my parenting, but some good instincts which serve me well professionally, too. Here are a few: 1) Be patient. 2) Not all of your wishes will come true. Choose those that are really important to you, and give in on those that aren't. 3) Life is about compromise. You can't win "em all! 4) You are the best and the smartest and the prettiest. But you don't have to tell people that to earn their love or approval. 5) Always be respectful. 6) Develop a curiosity about people. There is something good or interesting in everyone you meet. 7) Creativity counts more than smarts. 8) Put yourself out. People will appreciate it. 9) You get out of life what you put into it. 10) Strive to be fair. If you are fair to others, they will be fair to you. 11) Watch what you eat and take care of your health. That's the only body you'll get. 12) There's a time to speak and a time to remain silent. Sometimes people just need to be listened to. 13) If you really want something, persevere. You'll get it or something else will come along. 14) Be open to new challenges and adventures. 15) Nobody can take away your self esteem but you. Stand up straight! 16) Put value in the stuff that you can't buy: love of family, friends and your good health. The rest doesn't matter.<br /><br />On this Mother's Day, I appreciate these lessons and want to say "Thanks Mom" and to all of the Mom's who have spent a lifetime teaching by their example in ways that promote peace.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-43958369726560359902011-04-17T20:43:00.001-07:002011-04-17T20:58:34.534-07:00Learning a New Perspective at the ABA Conference<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjDFVSYxpHoBd-M61XHqUlSIdZeL1UHyoTh5DGR-ATZWXBsAoh0yoclvvjugfgxt0Wg7StjuahmafpRmRwbr4QSbIl9jVV0hFuR9xJcOa_4qQSEvHB_c_MyVDf3YZd2j9FjsTh9LkD7GY8/s1600/main-temple-grandin.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 200px; height: 156px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjDFVSYxpHoBd-M61XHqUlSIdZeL1UHyoTh5DGR-ATZWXBsAoh0yoclvvjugfgxt0Wg7StjuahmafpRmRwbr4QSbIl9jVV0hFuR9xJcOa_4qQSEvHB_c_MyVDf3YZd2j9FjsTh9LkD7GY8/s200/main-temple-grandin.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5596764694850747986" /></a><br />The ABA Conference for the Dispute Resolution Section was inspiring this year. The keynote speaker, Temple Grandin, really made a lot of us "verbal/top down thinkers" think about different perspectives. Dr. Grandin, autistic from birth, has made her name in understanding animals, graphs, numbers, science in ways she describes as only "geeks" can do. She references the thinking of people within the autistic spectrum as "visual" and "bottom up" in contrast to verbal thinkers, whom she describes as "top down". It really made me consider different perspectives and why, despite my eloquent and painstaking efforts to explain theory, principles and justifications, sometimes people mediating before me just don't understand. On the other hand, it highlighted my own limitations as, for example, I cannot understand my own son, a computer science major, or my husband, an architect in their detail-driven thinking which sometimes flies in the face of my own overarching analyses. <br /><br />In the end, I'm again struck by how much can be learned from people from different disciplines about how better to practice our own. <br /><br />I was also happy to present (for the 3rd year in a row) a presentation on "Ethics for Mediators" with Kim Taylor, JAMS COO John Sherrill, Seyfarth, Shaw and R. Wayne Thorpe, Chair of the Section, as well as honored to present a story which will be a Chapter in Eric Galton's upcoming book, "The Stories Mediator's Tell".Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-15137469293005337192011-03-20T16:00:00.000-07:002011-03-20T16:14:46.133-07:00Solution Focused Conflict Management<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiW0wmQ4Ip6UTFFUszXFC4OYA3lc7C06O1ZA6xcOv3RG45eJxMPseF_JtInquUbfvr0nyXDdubHtL2s0PEQw-sU5QTl_-Gwfi5UFz_unaXyHIjQWg-56EOGMph2sYWJlYWigDUe_iewVuY/s1600/looking_through_binoculars_future_predictions-600x399.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 320px; height: 213px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiW0wmQ4Ip6UTFFUszXFC4OYA3lc7C06O1ZA6xcOv3RG45eJxMPseF_JtInquUbfvr0nyXDdubHtL2s0PEQw-sU5QTl_-Gwfi5UFz_unaXyHIjQWg-56EOGMph2sYWJlYWigDUe_iewVuY/s320/looking_through_binoculars_future_predictions-600x399.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5586302113060356594" /></a><br />I'm reading such an interesting book, "Solution-Focused Conflict Management" by Fredrike Bannink. It occurs to me that there is an interesting dichotomy between the legal system, which is "problem focused" and the conflict resolution business which aims to be "solution-focused". Clients bring their problems to lawyers and they help them to address them by going back and seeking damages from those who have injured them. When they come to the mediator, we can either assist in that endeavor, or meet them where they are and assist in "getting out of the conflict" by changing their future--without any promise or hope of changing their past. Likewise, a client hires a lawyer to take action on their behalf in ways that they have been unable to do on their own. In solution based conflict resolution, the mediator gives the client back the responsibility and competence to make a decision which will affect change of their future. Bannink references a study which states that "a mediator can only mediate in the future tense." What an interesting challenge to mediate without regard to "how you got here" or "what is the problem?" to "how can you make small steps that will help you achieve your future goals?" It makes me see the world of hope and possibilities differently already.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com1tag:blogger.com,1999:blog-5140129394966264310.post-81964285195514375222011-03-13T08:51:00.000-07:002011-03-13T09:08:11.359-07:00The Power of Tactful Audacity in Mediation and in Life and Death<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjomsSLr18YQXYvctsGUdFVMCjotL_XLQHIj0-AiAQ84U1kOZ69Rtq8c0MrW5OTMwD0iI_rGpnzqVw3wDRBT5WQ-fGBLwnkiMQ-qUaA7u_t_q2Ud7yuVmGRKNT-5uV_d_yvLchwlFuw5Vw/s1600/204sea_atlantis_lg.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 200px; height: 139px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjomsSLr18YQXYvctsGUdFVMCjotL_XLQHIj0-AiAQ84U1kOZ69Rtq8c0MrW5OTMwD0iI_rGpnzqVw3wDRBT5WQ-fGBLwnkiMQ-qUaA7u_t_q2Ud7yuVmGRKNT-5uV_d_yvLchwlFuw5Vw/s200/204sea_atlantis_lg.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5583593157368479378" /></a><br />Yesterday, we laid my brother-in-law to rest at sea. It was a day in which we awakened to warnings that our Southern California Harbor was unsafe to exit due to the erratic seas caused by the Tsunami in Japan. An hour later, we were advised it was now safe, went to sea, only to be informed that we could not return to the slip because the warnings were again alarming and unsafe. We did return to safe harbor and were gratified to greet Tim's closest of friends and family who gathered to pay him tribute in ways he may never have known. He was a quiet spirit with an audacious lust for life, who died much too soon, but not before he left his imprint upon so many people throughout his life. What does this have to do with mediation? In today's New York Times interview of Romil Bahl, President and Chief Executive of PRGX, a data mining firm in Atlanta, Ga. , he talks about "tactful audacity" as a means of passing along a difficult message, which helps clients and trusted partners to evaluate difficult situations. Through collaboration and "leading from the front of the room", the best idea invariably wins. The next time I make an audacious move, from safe harbor to sea to returning to the slip, from challenging difficult clients with audacious ideas, from pushing back, tactfully, instead of clinging to old entrenched ideas, I will think of that day when the Tsunami struck, but we were unbowed, and those beautiful words that came pouring out of the mouths of strangers about the strong, but quiet spirit of a man who left this shore much too soon.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-66956054632171536022011-03-06T20:49:00.000-08:002011-03-06T21:12:43.156-08:00Transcendental Mediation<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgnFbn2Iu_mE750qpajXk-dIJG0VlWRWPy8a2DnQT3VqrpF5O0GBWuirImfqsGtJ2sJToVQ774DGhud3kBqkApLFz6eBHVa6TGSq35VwHoKCknGvXdNcPBg7kfcAuJjoXULg1PFK9Y4xe4/s1600/apanikkar.png"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 164px; height: 199px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgnFbn2Iu_mE750qpajXk-dIJG0VlWRWPy8a2DnQT3VqrpF5O0GBWuirImfqsGtJ2sJToVQ774DGhud3kBqkApLFz6eBHVa6TGSq35VwHoKCknGvXdNcPBg7kfcAuJjoXULg1PFK9Y4xe4/s200/apanikkar.png" border="0" alt=""id="BLOGGER_PHOTO_ID_5581197869461285042" /></a><br />I had the privilege of listening to a lecture by Ashok Pannikar, from Banglore, India today at the Mediator's Beyond Borders Congress here in Los Angeles. The talk was called, "Why is Joe the Plumber Peeved? Mediating Minority Rights and Majority Fears". It was a kind of "call to action" for mediators and those engaged in large-scale, global dialogue to reexamine our own biases and outdated world views. He reminded us that we are no longer in the 60's, or even the 90's. In fact, we may not be able to change the world, despite our unfailing optimism. Changes in demographics, globalization, a prolonged recession and a generalized loss of identity and increasing alienation and isolation of people everywhere has created an infinite axis of evil where everyone becomes an enemy: outsiders, insiders (think Wall Street/Corporate America), minorities, majorities, rich, poor. All of this depressing analysis lead Pannikar to urge us to strive for transcendence, or the awe that is created where we connect with another in service of something greater than the individual needs or rights. Progress, he said, comes from the tension between what is and what can be. With creativity, competence and effort, we have the capacity to experience, and guide others towards the awe that will be required of us to move to the next level of collaboration. Difficult to distill down to the nitty gritty of litigation, but we can aspire to shift the paradigm. Loved the concepts, the presentation, and being among such inspired speakers and attendees.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-21635302538013444132011-02-27T12:47:00.001-08:002011-02-27T13:00:38.805-08:00The Devil in Mediator's Clothing<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjmMVUh21MvFX7rJ3PBlYGLIkvmMSCdI0P0dpGQtTozlAmkU6qKrHna17TDu66CjJ5axm2OzCDlNPJSvHy7BQYddiSYKfylEHr7Wa4_7CmLFU5nt9SIYxOpsKpo6a3hcjUC2kz9xMLARnw/s1600/devil.gif"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 223px; height: 200px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjmMVUh21MvFX7rJ3PBlYGLIkvmMSCdI0P0dpGQtTozlAmkU6qKrHna17TDu66CjJ5axm2OzCDlNPJSvHy7BQYddiSYKfylEHr7Wa4_7CmLFU5nt9SIYxOpsKpo6a3hcjUC2kz9xMLARnw/s320/devil.gif" border="0" alt=""id="BLOGGER_PHOTO_ID_5578473895547107410" /></a><br />I had a rough week. As a mediator, on occasion, instead of feeling like each side's ally, one or the other side chooses to demonize us. This week, it was a landlord and tenant dispute in which I questioned whether an attorney/tenant would be able to prove a renewal of his lease by virtue of an oral agreement, which did not include an assent as to the material terms, including rent and length of the lease extension. I also stuck my neck out and offered that I didn't believe that a jury would be sympathetic to a little girl who had been seeing a "life coach" for a year following an auto accident to help her transition into the first grade. Both lawyers raised their voices at me and treated me as the "She-Devil" incarnate! (I'm pleased to advise that one of these cases has since settled based upon the Devil's Mediation Proposal which followed).<br /><br />It was so helpful for me to read the interview of Richard D. Fain, Chairman and C.E.O. of Royal Caribbean Cruises today in the New York Times business section for that reason. He talked about his mentor, Jay Pritzker (founder of Hyatt Hotels) who was often his No. 1 antagonist, arguing vociferously against whatever he was proposing. Pritzker, he said, questioned him in a "highly skeptical tone" and even called him crazy. His conclusion was "you learn more by arguing with someone than just agreeing with them I learn more about whether somebody really believes their point of view and has thought it through, and it also helps me clarify in my own mind the direction I'm going." <br /><br />So the next time one of the attorneys is demonizing me for that kind of skeptical questioning and antagonism, I'll remind myself that I'm actually helping them to clarify whether they believe in their point of view, have thought it through and wish to follow the direction they've started down, or change the course as the result of these "tough questions".Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-25017697394306084972011-02-06T08:16:00.000-08:002011-02-06T08:39:46.750-08:00Empowering Women at the Helm<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiCm8ovQ02J54J6XC9A2p76AMg824Erlou0oSbKwXURL2sqjqW7gc3fY7305PRyx4E9EyGPRRtLcWhKKq_raHzyqKqQmOQg1fGtG2fHfM34V1J83rgi9dihgyJ42O1XO3MDFYbcq6nSQqI/s1600/Time+Out+2011.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 299px; height: 400px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiCm8ovQ02J54J6XC9A2p76AMg824Erlou0oSbKwXURL2sqjqW7gc3fY7305PRyx4E9EyGPRRtLcWhKKq_raHzyqKqQmOQg1fGtG2fHfM34V1J83rgi9dihgyJ42O1XO3MDFYbcq6nSQqI/s400/Time+Out+2011.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5570611523888888770" /></a><br />I write from Newport Beach for a weekend aboard "Time Out" where I spent the day yesterday at the Southern California Yachting Association's 22nd Annual Women's Sailing Convention. It was quite a learning experience. Over 150 women, ranging in age from their 20's to their late 70's gathered to teach one another, to empower one another, to encourage one another to take the helm and Captain their own ship. It was a rare opportunity to learn and observe from other women how to not only be competent crew, but to be the one relying upon our own judgment, giving orders to our own (all women) crew, and taking responsibility for our own mistakes. My morning instructor, who taught "docking" gave me some invaluable life advice: if you are going to take the helm, you must be willing to take responsibility for whatever damage you do. If you truly "own" the consequences of your errors, you will find the freedom to make your own mistakes. The lesson for mediation: it's not just about compromise, but sometimes about accepting the responsibility for your actions. In doing that, you may even find that you've been empowered to do great things and small (like reaching safe harbor and enjoying cocktails and the sunset). The other part of the lessons offered was about cruising--which is sailing off shore for extended periods of time. I was fascinated by the number of women who had taken off months or years to circumnavigate and leave the daily grind behind, in exchange for such basic efforts as navigating the wind, the waves and the weather. While it always seemed to me to be a sport reserved for the very wealthy and retired, it is in fact a lifestyle choice that young people and working people make as well. Some are single, some are married, some travel with children and some stop only to see the births of new grandchildren. And I'm brought back to the notion that we can take the helm as long as we are willing to accept the responsibilities of the consequences. Because I handle so many employment disputes, where the employees may not be returned to work until or unless the economy improves and they have been re-trained to return in a different capacity, this too felt empowering. The idea that one could live their life in adventure and beauty of the sea, was also exciting. In the end, it's a new perspective which I had not been realistically considering and which is now within my tool box as a challenge and opportunity. The lesson was not only how to get into the dock, but how to leave the dock behind and safely go with the currents even as they change moment to moment.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-75572314749960355242011-01-30T08:31:00.001-08:002011-01-30T08:59:03.369-08:00Balancing Optimism with Realism<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgh5-hbh1ATureDivOgoE7gsHXuXs8C9KRpfjPh6raemq4hc-GJEzZgec0fUSdwT9xL4yOaVbyN7wX8nhhc1LXZrHoFop2tZ2sv8LCWBhAx4OSA_jBQS-toLtap9TOqHCEUrK93ik-vI-4/s1600/time+or+money.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 320px; height: 213px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgh5-hbh1ATureDivOgoE7gsHXuXs8C9KRpfjPh6raemq4hc-GJEzZgec0fUSdwT9xL4yOaVbyN7wX8nhhc1LXZrHoFop2tZ2sv8LCWBhAx4OSA_jBQS-toLtap9TOqHCEUrK93ik-vI-4/s320/time+or+money.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5568018578545979282" /></a><br />The New York Times article by Sheryl Gay Stolberg, refers to President Obama as "The Cheerleader in Chief" in today's Business Section based upon last week's State of the Union address. As a mediator, I find myself required to do much the same. On the one hand, I am asked to convey an optimism that all conflict can be settled and that the parties can achieve their best possible results at an informal hearing in our offices on the very day set for a mediation hearing. On the other hand, I need to be that realistic "truth sayer" who reminds the parties that the potential exists that the case will not settle, causing a substantial risk to both parties, uncertainty in the outcome and an enormous expense. The article speaks of Obama's first two years being busy with a kind of "triage" of an array of emergencies ranging from an unpopular war to economic crisis. When I hear a mediation, so many times, the parties have been mired in their own discovery disputes, that they are unable to see the potential resolution or "way out". They arrive with a variance of the evaluation of damages and often divergent views of the facts, the law and whether certain evidence will ultimately be developed or admissible to prove their positions. <br /><br />I particularly loved the example used by Ronald Reagan. He told the story of a boy who got a pile of manure for Christmas and declared, "There must be a pony in there somewhere!" In the end, the article suggests that this is a "trust but verify" moment. I suppose that the parties before me expect no less. A balance I strive to achieve and convey. Even when the parties bring nothing more than manure, an optimistic mediator will help to look for the pony underneath the pile!Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-84246117360659782482011-01-24T07:53:00.000-08:002011-01-24T08:05:10.933-08:00It's Never "Just About the Money"<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjdRlaulaHrqxniuOiQlAq1xa4Y6TElvh61-pK6M-CJURWvVOWxlXZgzl8NJLklSZgtQdTf6ErElJtivje0EI6rxYagmyK4CN2m6QAQwRuP8Tv5YRLB0L9d4-Tdwm1hGOTDD9R6mM_HHqk/s1600/20-dollars.png"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 200px; height: 165px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjdRlaulaHrqxniuOiQlAq1xa4Y6TElvh61-pK6M-CJURWvVOWxlXZgzl8NJLklSZgtQdTf6ErElJtivje0EI6rxYagmyK4CN2m6QAQwRuP8Tv5YRLB0L9d4-Tdwm1hGOTDD9R6mM_HHqk/s200/20-dollars.png" border="0" alt=""id="BLOGGER_PHOTO_ID_5565781323587407554" /></a><br />I was inspired at this weekend's Consumer Attorneys Association of Los Angeles' Gala and Installation of Officers. These are the trial lawyers who achieve the biggest verdicts for their clients and yet they spoke not of their financial marks but of their striving for "justice" for their clients. So I got to thinking about whether mediators can acheive justice, or if what we dish out is only money? There's a new show, "Fairly Legal" which depicts a sit-com/drama of a mediator who seems to stick her neck into all types of matters--civil, criminal and even social. Although it's plenty dramatized, it occurs to me that in a broad way (pun slightly intended, but with apologies), she is out for mediating justice--and so far without dealing with any monetary issues. I hope that our profession has not, and will not, ever be so commercialized that people only choose to mediate their disputes when it's "only about the money". We can offer a chance for face to face interaction, for control of the outcome by the clients (not a group of strangers or a "higher power" as a Judge), and compromise. Does justice in Court offer any of those features? I don't think so. It's a different version of justice, one where there is not a clear winner and loser, but nonetheless, not limited to money. I hope in the coming year that I can keep sight of that goal, just as the Trial Lawyer's did on Saturday night: It's never just about the money and we owe our clients that chance to achieve "justice" in our alternative forum as well as in Court when they choose.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-78736383641130400442011-01-16T08:27:00.001-08:002011-01-16T08:49:43.219-08:00New Reasons for Being a Mensch<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgsNzCs0CJ1a0J8fI078iFeZNrNizkmfMxSmlXOJAPaXUhXJ9DRrSFkB0LSGMN62Xhihar82c1CgotTTuY5hO9-UT5mfuwMhgU03INbxG2b-BiGNcYLn1qyzIPiV5kDsZfLbWj7JWD4tG0/s1600/666_320_JEM_5148.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 400px; height: 266px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgsNzCs0CJ1a0J8fI078iFeZNrNizkmfMxSmlXOJAPaXUhXJ9DRrSFkB0LSGMN62Xhihar82c1CgotTTuY5hO9-UT5mfuwMhgU03INbxG2b-BiGNcYLn1qyzIPiV5kDsZfLbWj7JWD4tG0/s400/666_320_JEM_5148.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5562822959316147122" /></a><br />When we look for the ideal husband for ourselves or our daughters, many have long known that the primary goal is to find a man who is a "mensch". (Pictured are my husband and new son in law--both epitomize the term!). This week, the California Supreme Court reversed an Appellate court decision and upheld confidentiality in mediation, even where it may allow a lawyer to commit malpractice and then shield it from discovery in a subsequent lawsuit. Cassel v. Superior Court, 2011 DJDAR 658 (S178914 filed Jan. 13, 2011). In essence, this creates a heavier burden to "do the right thing", because lawyers and mediators (and their clients) must know that the deals we strike in mediation cannot be later attacked by evidence that the lawyer acted improperly during the proceedings. <br /><br />This morning's New York Times includes a Book Review of "Practical Wisdom: The Right way to do the Right Thing" by Barry Schwartz and Kenneth Sharpe by Bryan Burrough. Burrough calls the review, "The Spirit of the Mensch" and applies the practical wisdom of the book authors to the practice of law, medicine and business. In today's troubled age, and the weekend celebrating the great peacemaker, Martin Luther King, Jr. as well as the day I am attending a wedding of two young people who strike me as among the most ethical, decent, menschy I know, I can only offer that it is my hope that the Cassel decision will not give a green light for misbehavior, but instead impose a quiet code of "menschleikeit"--encouraging and inspiring lawyers to be their best and highest selves even though they have the cloke of confidentiality at that most critical moment of advising their clients in mediation.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com1tag:blogger.com,1999:blog-5140129394966264310.post-19155581694325802872011-01-08T08:11:00.000-08:002011-01-08T08:25:49.061-08:00The Ten Plagues<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiv4F0eyNKqB5P_YnygpPnT6K6_YhZGc5o3xgm5EWEQluubNXC-QvH-QeUZbVRYrW7jDS9GlkxkuhjDjAblZF4SrunUgiNnJbKlvho7TiAVqlZ5OTM97UPK1GOSTWf2JRVST9VlSvsNiks/s1600/darkness.jpg"><img style="display:block; margin:0px auto 10px; text-align:center;cursor:pointer; cursor:hand;width: 400px; height: 255px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiv4F0eyNKqB5P_YnygpPnT6K6_YhZGc5o3xgm5EWEQluubNXC-QvH-QeUZbVRYrW7jDS9GlkxkuhjDjAblZF4SrunUgiNnJbKlvho7TiAVqlZ5OTM97UPK1GOSTWf2JRVST9VlSvsNiks/s400/darkness.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5559849220563648066" /></a><br />In the spirit of my New Year's Resolutions to broaden and deepen my own intellect, I attended a Torah Study yesterday by Rabbi Steve Leder of Wilshire Boulevard Temple in Los Angeles. We read from this week's Parscha (portion) the familiar story of The Ten Plagues which G-d caused in Egypt when the evil Pharoah stiffened his heart. The sixth Plague was darkness. The commentary about why "darkness" was considered a plague equal to blood, boil, locusts, hail was interesting. The Rabbi's concluded it was because "darkness" would not allow people to see one another's humanity. As I always do, I had to consider how this relates to my work and my role in other people's conflict. My conclusion is that mediator's are trained optimists. We look for the light in the dark canvas of other people's lives. Maybe we are born this way and it's what draws us into this field. Consider the "re-framing" technique: are we not attempting to find the light in an otherwise bleak situation. Particularly in my work in employment mediation, I find myself constantly looking for the opportunity that the lost job, and oftentimes the lump sum settlement creates: can they now put away money to put their children through college, take a long awaited vacation, return to their local community college to re-train and pursue something they have long wanted to learn how to do? Thank you, Rabbi Leder, for leading me to this journey of introspection and helping me make sense of Torah in the context of mediation!Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-8405716245003595522010-12-26T20:37:00.001-08:002010-12-26T21:01:33.625-08:00Thinking Within the Box: Facilitated Dialogue without the need for Conflict<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhlzCu6go65eDwZdtZ323QB8xlJQbDxjjpwoKa8XNoPAke_pku_TR-voDjsPquCvHXWl0T4a0-KziSH_2YlPGqv0N8Fo3GHe32qCzlCdM8JmyOaOt3M2EevzFbsORfpIBP87jzZbRqxCGs/s1600/DSCN1582.JPG"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 400px; height: 300px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhlzCu6go65eDwZdtZ323QB8xlJQbDxjjpwoKa8XNoPAke_pku_TR-voDjsPquCvHXWl0T4a0-KziSH_2YlPGqv0N8Fo3GHe32qCzlCdM8JmyOaOt3M2EevzFbsORfpIBP87jzZbRqxCGs/s400/DSCN1582.JPG" border="0" alt=""id="BLOGGER_PHOTO_ID_5555217588832063762" /></a><br />My parents, 82 years young, are beginning to recognize that they want the input of their adult children in managing their lives: business investments, tax and estate planning, cooking, driving, traveling. This morning we took advantage of the holiday week to all gather together for breakfast and a business-type meeting. Before going, I gave some thought to structuring the discussion in a mediation like way, but without the conflict. It was tricky: my brother and my husband clearly anticipated that I would unwittingly create or highlight conflict when there wasn't any. Instead, it worked this way: We began with my Dad, the patriarch, expressing some of his concerns and interests. I took notes and then invited the others sitting round the table to chime in. In the end, I set an agenda with 14 items (and we addressed only 7) ranging from "ground rules" including privacy from the next generation to a framework for regular commuication (Semi-annual meetings with our generations only--which my brother will "convene" via email in May and beginning of December). Because there were no real interpersonal disputes, it was more a useful tool for setting up a basis for future communications and accountability. (Who will check in to make sure they are eating well and are protected from financial predators, for example?) Mom promised never to drive to a family event in an evening without first checking with my nearby daughter. Dad promised that if they travel home at night they will arrange for someone to pick them up at the airport and not wait for a cab who may not be willing to drive them since they only live a short distance from the airport. My husband agreed to discuss some real estate issues with their accountant before they decide how best to characterize a taxable event that occurred in the past year and affects some family property. I submit that for my mediator friends, this was a useful way to engage our skills and expertise outside the world of conflict--but in a way that I am proud to say was highly appreciated by my brother and sister and their spouses and my terrific parents. It started as a difficult conversation, but once we put it in a familiar (to me) framework, it worked smoothly and paved the way for whatever more difficult conversations will inevitably follow.Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com1tag:blogger.com,1999:blog-5140129394966264310.post-77517818792722627972010-12-19T09:33:00.000-08:002010-12-19T10:00:19.294-08:00Civility or Benevolent Dictatorship?<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgr0o5Q5gJ0zIIuQF-TU9zHeyLXR58rx24GCTvS4FmdKj-6Y7J1TWnm2L1UjLn7Llch9bLYvQaZwcrRgDd_yIIEzF2WIRPN8fLRL8hK-V_H5ZeOvh-NBwbpFEnoADgCMiAzYR7cwdnC8B4/s1600/IMG_4226.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 240px; height: 320px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgr0o5Q5gJ0zIIuQF-TU9zHeyLXR58rx24GCTvS4FmdKj-6Y7J1TWnm2L1UjLn7Llch9bLYvQaZwcrRgDd_yIIEzF2WIRPN8fLRL8hK-V_H5ZeOvh-NBwbpFEnoADgCMiAzYR7cwdnC8B4/s320/IMG_4226.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5552454399935196274" /></a><br /><br /><br />Today is my son, Zach's birthday. He is a man of many facets: a musician, a sharp business mind, a bon vivant, athletic, handsome, sweet, creative, tough, ambitious, and all around great guy. And so he brings me to consider my own multi-faceted business practices. I have been struggling this week with the objectives of both litigators and mediators in settling challenging commercial cases. On Monday, I lectured at a lawfirm on "Civility" and was struck by the ease with which litigators could rationalize less civil conduct than the State Bar's Civility Guidelines dictate could be ignored in the context of litigation. Then this morning's New York Times included an essay called "The Bipartisanship Racket" by Frank Rich Rich talked about the shortcomings of a new movement of "No Labels" and contrasts it with the much needed "leadership" virtues. At a holiday party last week for the Southern California Mediation Association (SCMA) my own trainer, Therese White asked me whether I employed an "Evaluative" style in mediation. I had to think for a few minutes. And then, in another article in the New York Times this morning, there was a profile of Bruce Flatt, of Brookfield Asset Management, who is known for his excellent skills in negotiation and has been called a "Benevolent dictator". My synthesis of this is that the two strains: civility and "heavy metal" evaluative mediation can be effectively combined. With civility as the overarching framework (ie: true benevolence) a form of dictatorship, although anathema to true mediation, may be the only way that challenging litigated cases can be effectively resolved. If the parties or the lawyers knew how to settle their claims without a benevolent third party dictator, they wouldn't need a private mediation! Something to consider...Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com0tag:blogger.com,1999:blog-5140129394966264310.post-7610451958319076232010-11-28T15:42:00.000-08:002010-11-28T15:51:29.665-08:00The Power of Silence<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim_b1HTYnJexsarA-79Dzhqv_9thdjZu2fctAg8Cr-orxpd-2eMar9OboL8V56de0EQ-SoCeXttHR7Oz8zNe8GFEAkvZcI7Kt3MLNjoecvSI3EdXASuMvfpqjRIaEyzNzeBc0YMnZCDE8/s1600/1225821283228_silence_t.bmp"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 320px; height: 204px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim_b1HTYnJexsarA-79Dzhqv_9thdjZu2fctAg8Cr-orxpd-2eMar9OboL8V56de0EQ-SoCeXttHR7Oz8zNe8GFEAkvZcI7Kt3MLNjoecvSI3EdXASuMvfpqjRIaEyzNzeBc0YMnZCDE8/s320/1225821283228_silence_t.bmp" border="0" alt=""id="BLOGGER_PHOTO_ID_5544750450426450514" /></a><br />Now that the Company has gone and we've delivered borrowed dogs and leftovers where they belonged, I note just how quiet my home is. I'll confess that I even abhor the constant Christmas music now that it's played on radio from Halloween to New Year's. So I find myself immersed in a welcome "hush" this Sunday after Thanksgiving. <br /><br />This morning, while tuning into the Sunday morning news broadcasts, I heard one of the commentators talking about an aphorism in journalism about silence. He said the old adage goes: "Let the silence suck out the truth." What a powerful message for mediators! Silence can be among the best tools and yet least appreciated or employed in a mediation. It's been a hard lesson for me to learn: the art of sitting on my hands with my mouth shut and allowing the disputants to discuss and debate and ultimately collaborate on a way to settle their own disputes. Yet I find that in those moments when true emotion heats up and boils the silence in the room can, indeed "suck out the truth" in the key to a difficult resolution. Welcome quiet and the truth shall set you free!Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com1tag:blogger.com,1999:blog-5140129394966264310.post-79909199224381300922010-11-21T11:13:00.001-08:002010-11-21T11:21:34.523-08:00Is "Settling" a Dirty Word?<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiLcLSrKXM-VkK0NHRBzcV-2P2kJcW-ZnK42tX-5Wrd9gjH73H2bfPLpAlzKY50sDzesAFxF3_jXCumTY3AAV7tyK32dxB5QtepEihcVFsDqCM6bhysM3lDE29RsMrNKc06kUD8W1LuK4k/s1600/hazards-settling-wrong-job--5d934a0a9e14525e7e59e17650a1fadc.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 200px; height: 200px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiLcLSrKXM-VkK0NHRBzcV-2P2kJcW-ZnK42tX-5Wrd9gjH73H2bfPLpAlzKY50sDzesAFxF3_jXCumTY3AAV7tyK32dxB5QtepEihcVFsDqCM6bhysM3lDE29RsMrNKc06kUD8W1LuK4k/s200/hazards-settling-wrong-job--5d934a0a9e14525e7e59e17650a1fadc.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5542083334111028290" /></a><br />I pride myself on settling cases. Most of the time, somewhere near the beginning of the mediation hearing, I explain to the parties that what we're after is a "compromise", not a win. Most of the time, they're satisfied with the outcome: it ends the lawsuit and usually resembles what is legally "right" or at least justifiable financially. And yet, when you "google" the word "settlements" you get a lot of images of uninvited housing developments in lands whose ownership is still under dispute. Does "settlement" also mean something like "staking out your claim"? Or consider the "settling" that takes place in so many homes in Southern California. That one causes cracks in our ceilings and walls after earthquakes have caused our foundation to tremble over so many years. Is that a good thing? What about "debt settlement"? That one gives relief to the debtor, so probably is analogous to the kind of settling I do for parties before me. And consider "settling down" as in making peace with your current situation. It appears to be subject to one's interpretation in ways that make my job that much more challenging. Do I dare to urge the parties to "settle" their lawsuit or is it useful to consider other terminology in light of the various meanings attached to the word?Jan Frankel Schauhttp://www.blogger.com/profile/14306973470195313941noreply@blogger.com2