Getting Out of the Way/Martin Rosenfeld, JD

Posted on July 24, 2016

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An attorney/mediator, Jan Frankel Schau, recently wrote a post at mediate.com, entitled “A Funny thing Happens When People Talk to One Another in Mediation”. Ms. Schauu described her involvement in several litigated matters. Attorneys and clients were frustrated with the slow movement of the cases. What does a mediator do? Well Ms. Schau took a back seat and invited the attorneys to discuss settling the case. In some ways it was a high-risk strategy as the mediator was making herself a minor play in this drama. However, it worked. The conclusion of Ms. Schau is that there are times where the best service a mediator can perform is to simply “get out of the way”.

Ms. Schau is downplaying her role because even in such a context, the mediator is creating an atmosphere where trust and candor can thrive. Nevertheless, the post is an echo of the proverbial exhortation; “Lead, follow, or get out of the way.” A good mediator by presence alone can give the parties the sense that they are entrusted with the task of reaching an agreement that is civil and equitable. This is no small task and it is a good deal more than getting out of the way. But is is yet another strategy for a proven way to get to Win-Win. Mediate don’t litigate.

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