Maximizing the Outcome and Experience in Mediation With Large Firms: Insights and Tips for Small Firms and Sole Practitioners

• Publication year: 2018
• Author: By Jan Frankel Schau

Maximizing the Outcome and Experience in Mediation with Large Firms: Insights and tips for small firms and sole practitioners

By Jan Frankel Schau

Jan Frankel Schau has successfully mediated over 1500 litigated cases since giving up her litigation practice and becoming a full-time mediator in 2003. She has been a panel member at ADR Services for over a decade and is widely regarded as one of L.A.'s preeminent mediators, being recognized by the Los Angeles Daily Journal as a Top 50 Neutral. A former President of the Southern California Mediation Association, Jan is also a Distinguished Fellow of the International Academy of Mediators and a member of the United States District Court's Settlement Officers Panel. Jan specializes in mediating employment, business and tort disputes. Jan is the author of numerous scholarly articles and a book, "View from the Middle of the Road: A Mediator's Perspective to Life, Conflict and Human Interaction". For more information, see: www.schaumediation.com.

Famed philosopher Fortune Barthelemy de Felice opined that negotiations can be an antidote to weakness if those weaker powers wisely observe the maxim that "it is always best to submit to negotiation those things that one cannot contest by arms. Such conduct depends on continual negotiations and on friends and allies; it is the unique but sure resource of the weak, and it is most useful for tempering the excessive force of the powerful."¹

Success in mediation may be a particular challenge to the small firm or sole practitioner who, like a small nation, may find itself insufficiently armed to combat a more forceful power. Through careful preparation and effective advocacy, though, you may find you can "win support and rid [yourself] of the most troublesome [cases] ."²

In a hypothetical case of sexual harassment in the workplace, imagine the scenario in which your client, Sally, engages you to bring a legal action against her former employer for wrongful termination in retaliation for reporting sexual harassment. You become aware that many of the alleged acts of misconduct are barred by the relevant statute of limitations, however your client was only fired recently after six other women came forward to charge sexual harassment against their Supervisor³ and she participated in an interview in their case.
Before commencing litigation, and aware that the other six women have an on-going lawsuit currently, you write a demand letter to the former employer, which triggers their response requesting an early mediation before filing this action.

HOW DO YOU GET THE BEST RESULT FOR YOUR CLIENT AGAINST A NATIONAL LAW FIRM WITH THREE PROMINENT LAWYERS ALREADY DEFENDING A SIMILAR ACTION AGAINST BIG CO.?

Timing the Mediation for Maximum Success

• Before you agree to mediate, you and your client will want to carefully consider the advantages and disadvantages of early mediation. While the Company will have had an opportunity to investigate, you may be coming from a disadvantage with respect to information if the mediation is conducted pre-filing. The good news is that you may set conditions upon an early mediation. Laying out the minimum information you will need in advance of the mediation will not only "arm" you with some power but will engender respect from your adversary. If you need to see their investigator's report, or review your own client's personnel record, or take statements from the other plaintiffs, you may engage in that kind of informal discovery as a prerequisite to a mediation.
• If you believe that a mediation will not be successful until...