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The Danger of Too Much Pride in Mediation

Lawyer’s Lesson: Posturing to Gain a Minimal Extra Benefit Can Backfire

This week I mediated a whistleblower case where an employee had complained to his Supervisor that another employee was signing his name to documents that were going to the Unemployment office. During the investigation, the employee got frustrated and quit the job. He was now suing for “constructive termination” claiming the terms and conditions of the employment were intolerable. After several hours of negotiation, I made a mediator’s proposal that I knew was likely to be accepted by both sides–within 5-10% of their expressed (to me only) hoped-for result. Before Defendant had gotten the authority to accept or reject it, though, Plaintiff’s attorney informed me that had rejected it and his client had departed from the mediation. He wanted what amounted to 7% more. Unfortunately, since he rejected my proposal and invited his client to leave, the door was partially closed to any further negotiation. When Defense counsel learned that the Plaintiff had rejected my proposal, she, too left abruptly–making the assumption that the case couldn’t be settled on that day. By posturing in this way, both sides dug in their heals in ways that were unnecessary and not in the best interest of their clients. Just as the Plaintiff had abruptly quit his employment, this tactic of abruptly ending the negotiation was not fruitful for an efficient result. Many phone calls later, and for less money than the ultimate “final demand”, the case settled one week later.

                        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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