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Talking the Talk of Mediation

Most people know that when you approach mediation, you typically bring a different tone of voice and even a different vocabulary from the rest of litigation. Instead of speaking in adversarial terms with “causes of action” and “affirmative defenses”, even the most hardened of litigators appreciate that the purpose of mediation is largely to state their side’s claims (or story or narrative), listen to the other side’s perspective and then negotiate a sensible deal in light of the risks, expenses and evidence that is known or likely to be produced. When we get to “brainstorming” or that creative idea generating, we can speak in the language of “what if’s” or “option generating”. There, we are not constrained to the legal rights and remedies which limit the court. We can “think outside the box” in order to get to the real interests of the parties, not just the likely outcome at trial. Like learning a foreign language, reading music or “coding” a new computer program, the language of mediation can be an important instrument which, if used effectively, can serve to tame the beastliest of adversaries in a single day. How’s that for a creative idea?

                        author

Jan Frankel Schau

Attorney Jan Frankel Schau is a highly skilled neutral, engaged in full-time dispute resolution. Following a successful career spanning two decades in litigation, she has mediated over 700 cases for satisfied clients. Ms. Schau understands the nuances of trial and settlement practice as well as client relations and balancing the… MORE >

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