Meticulous Preparation Leads to Outstanding Results




This year's newsletter is a series of "Life Lessons", in tribute to my late mother. They are lessons that have served me well as I apply them to mediation.  

My mother knew how to throw a party, pack for a trip, plan every holiday, fundraiser and birthday for maximum "wow".  Months before, she would check in with the critical guests to make sure they were available and set a venue that was convenient as well as the ideal time to get together.  Weeks before, she would lay out her best party platters and have her home help polish the silver, plant the garden and whatever else would make it special.  She would make sure that she and my father had the proper attire laid out and clean.  Days before, she made every possible dish that could be made and frozen before the party.  She knew that the key to success was planning, organization and a strategy.  (Even this Passover, we were amused to find her "Post-it" notes still firmly attached to her silver platters, so that all could see where she intended the Salmon Kebabs and the Broccoli to be served.)

Yet in mediations, all too often one or the other party arrives without the one important participant who can actually make the decision about how the matter may settle.  On other occasions, the parties arrive with confidential "evidence" that they have not shared with the other side in advance.  It makes it really hard to adjust the evaluation based upon evidence which has not been provided and analyzed before the day of hearing.  Very often, one or the other side have novel legal theories (such as statutes that apply to a particular industry or a critical time line that defeats one or more theories of the case).  Yet if those theories are not shared before the mediation, it's a challenge to get the decision makers to re-evaluate and change their view of the case without giving them a chance to read, review, discuss and test that evidence.  Finally, on occasion, I receive the brief on the evening before the mediation hearing.  This means I have already prepared myself based upon only one side's submission.  And it means I haven't spoken to you about YOUR strategy because I had no idea how to engineer that conversation or what questions I may need answered before the day of the hearing.  

I am all for confidential communications with your mediator, but as Coach John Wooden of UCLA used to say,  "He who fails to plan, plans to fail."  My mother was not a great fan of basketball, but she knew this lesson intuitively and passed it along to me.  The next time you find yourself in mediation, make sure you have sent your brief to the mediator at least a few days ahead of time and whatever documents you think the other side needs to see, too.  And make sure that your client or the decision maker will be present at the mediation and prepared to be open-minded to the evidence presented to him/her.  If the key people can't be there, that too needs to be communicated to both the mediator and the other side.  Surprises are great at trial (sometimes), but planning out your strategy works far better in a mediation.

John Wooden also famously said:  "It is what we learn after we think we know it all, that counts."

Good planning can bring good results!

P.S.:  I will be presenting at an ABA Dispute Resolution Section Webinar on May 9, 2017 at 9:00 AM PST.  The topic is:  "When Participants in a Mediation are a Handful:  How do Mediators Handle the Inappropriate and Disruptive Litigant".  To tune in or listen to the Webinar later, find it here

Best Regards,

Jan Frankel Schau


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