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Bullying – When the Parties Leave the Mediation and Enter the Schoolyard

The inspiration to write about bullying in mediation came from at least two sources recently.

First, this week I saw an ad on TV about the website http://www.stopbullying.gov/ which announces that October is “Bullying Prevention Awareness Month.”

The foregoing website defines bullying this way:

Bullying is unwanted, aggressive behavior among school aged children that involves a real or perceived power imbalance…. Kids who bully use their power-such as physical strength, access to embarrassing information, or popularity-to control or harm others. Power imbalances can change over time and in different situations, even if they involve the same people.

See, http://www.stopbullying.gov/what-is-bullying/definition/index.html .

Second, last week Mark B. Baer, a perceptive colleague and a friend, wrote a response to a recent post of mine (http://karpmediation.wordpress.com/2014/10/02/it-is-very-hard-for-people-to-give-ground/ ), suggesting that the following was perhaps one cause of why some disputes do not settle in mediation:

The percentage of people with diagnosable personality disorders such as borderline personality disorder and narcissism and people with high conflict personalities have increased with each generation.

Both the TV ad and Mark Baer’s comment led me back to some of the written materials that I kept from an excellent program I attended in June 2014 on “Negotiations with Difficult People,” presented by another colleague, Tim Corcoran, and by Retired Judge Chris Warner.

(Per them by the way, “Difficult People” includes, among others, Antisocial, Histrionic, Narcissistic and Borderline individuals, as defined by the Diagnostic and Statistical Manual of Mental Disorders, aka “the DSM.” These are the same types of people to which Mark Baer referred in his reply, above.)

Corcoran and Warner also remark in their materials that bullies are among the types of High Conflict Personality People that we may come across in mediation.

I also have some fine written materials from Bill Eddy who is the President of the High Conflict Institute, an attorney, a therapist, a mediator and a lecturer.

All of these materials contain really excellent suggestions on how, as a mediator, to recognize and deal with high conflict people, how to listen and talk to them, how to give them empathy, attention and respect without agreeing or disagreeing with them, how even to attempt to divert their attention from the emotion of it all to the problem solving that mediation needs in order to result in resolution.

That doesn’t mean that the materials guarantee that a case with a bully will settle however.

In fact Retired Judge Warner suggested, during the program that I attended, that, although most cases do settle prior to trial, those that go to trial are often propelled there by the “Difficult People” participating in them on one side or the other, or both.

In any event, one idea in Bill Eddy’s materials caught my eye as I was writing this:

To manage our own reactions as mediators to high conflict personalities (e.g., bullies in this piece), Eddy suggests among other things that we should view them as five-year-olds with insecurity issues.

That’s where the mental picture came to me of the parties leaving the mediation and entering the schoolyard.

On the stopbullying.gov website, one of the suggestions of what to do in response to bullying is to “walk away and stay away.” See, http://www.stopbullying.gov/kids/what-you-can-do/index.html

Often that’s the reaction I have seen in mediation: when one side has perceived that it is being bullied by the other side, the response has been to get up and leave, or not give in (i.e., not agree to the bully’s demands).

Perhaps that is the right response (perhaps not), but often it is the impatient one.

As Bill Eddy suggests, dealing with High Conflict Personalities takes time [lots of time, I think], attention, patience, empathy and respect, to get them to focus on and use their problem solving skills.

The rub is that often the other side cannot be kept patiently waiting for all of that to happen and/or the financial constraints on the mediation won’t allow for it.

In any event, working with a bully is difficult at best and impossible at worst.

Perhaps that is why Mark Baer and Judge Warner acknowledge that a case with a difficult person (such as a bully or other High Conflict Personality) may not settle.

I agree, of course, but remain cautiously hopeful notwithstanding.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. For more information, go to http://karpmediation.com .

News-Diary Page Updated with New Announcement

I updated the News-Diary page of my website (see, http://karpmediation.com/News-Diary.html) to include the following announcement today:

October 9, 2014 — David I. Karp was pleased to learn today that his name will be included in the November publication of “Southern California’s Top Rated Lawyers of 2014,” which will be distributed on or about November 30, 2014, with the Los Angeles Times.  In the 2013 publication, Mr. Karp’s name was included under the specialty heading of “Alternative Dispute Resolution.”

(Of course, I was amused to learn of this inclusion from an email advertisement asking me to purchase a wall plaque denoting this distinction, but news is news after all.)

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. For more information, please go to http://karpmediation.com .

When Life’s Routines are Interrupted.

The water was turned off for more than 24 hours where we live due to a significant plumbing problem. For us at home this meant: no real cooking, no dishwasher, no washing machine, no showers, no flushing. Ugh.

The experience made us really appreciate a ready, reliable water supply, something we don’t usually have to think about.

It also made us aware of the difficulty and upset that comes with having life’s ordinary routines interrupted.

We did OK; it was like an earthquake drill at home.

Finally, a great relief washed over us [pun intended] when the water came back on.

I imagine that the relief we felt is not unlike that which comes from the mediated resolution of a dispute.

Although the experiences of no water and a seemingly unending dispute are different, they still share similar effects on people, such as stress, worry, financial drain, lack of concentration and so forth.

In either event, it is extremely wearing on one’s good nature and exceedingly disruptive of one’s personal, family and/or business life during the ordeal.

Fortunately, the relief that comes when it’s over is real.

It was for us.

I think this argues well for mediation where, as with the plumbing problem, the relief from resolution can be palpable.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. For more information about him, please go to http://karpmediation.com .

It Is Very Hard for People to Give Ground.

A long-time litigator remarked to me the other day that he thinks it has become more difficult nowadays to settle cases.

As I was listening to him, I was thinking to myself that, now as before, it is difficult because it is very hard for people to give ground.

(For those unfamiliar with the idiom, to give ground is “to change your opinions or your demands in a discussion or argument so that it becomes easier to make an agreement.” See, http://idioms.thefreedictionary.com/give+ground .)

There is of course the emotional unwillingness to give ground.

By way of example, sometimes people are so invested in seeking justice, retribution, or vindication, that they just would not know what to do with themselves if they gave up the fight.

Or perhaps they feel as if they will lose face or be considered weak if they don’t stand up for themselves.

Or they “absolutely know” they are going to win and there’s no way they’d take less or give more given that “inevitable” outcome. (Never mind that sometimes they are just wrong.)

Or they are just too angry or insulted to see straight.

Then there is the financial unwillingness to give ground.

Ignoring the cost of not settling, people nowadays sometimes still bring the continuing financial consequences of the recent “Great Recession” with them to the table.

That is, with money so scarce for many people and with the economy continuing to lag, some still feel the pinch and are unwilling or unable to give up the chance for that pot of gold at the end of the trial.

Or they are unwilling or unable to agree to pay more to resolve a dispute with money they don’t feel they have.

With these kinds of obstacles to settlement, it is no wonder that the attorney with whom I spoke recently thinks it has become more difficult to settle cases nowadays.

As mediators, we can hope to help with the tools, techniques and experiences we bring to the table.

And with an injection of understanding, common sense and good counsel, perhaps the obstacles to settlement can be overcome or at least mitigated. [See by way of comparison, http://karpmediation.wordpress.com/2014/07/26/all-of-the-ingredients-for-resolution-were-present/ ]

Still, it is ultimately up to the disputants themselves to decide if they can give ground, and if so how much, to settle their cases.

And, yes, I acknowledge and appreciate that  it remains really hard for people to give ground when they are in the throes of litigation, whether and when they settle… or not.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. For further information, please consult his website at http://karpmediation.com .

Repairing the World and Repairing Ourselves

As a mediator, I always find inspiration in this time of year.

We are now in the the Days of Awe (Yamim Noraim), the days between Rosh Hashanah (the Jewish New Year) and Yom Kippur (the Day of Atonement).

Traditionally, this is a period of turning inward, engaging in self reflection, figuring out what went wrong and determining how to make things right.

With sufficient self exploration and nerve, our teachings encourage us to apologize to, and to seek forgiveness from, those we have hurt, knowingly or unknowingly, intentionally or unintentionally.

In this way, we can repair relationships. In this way, perhaps we repair the world around us.

A prayer at the beginning of Yom Kippur called Kol Nidre also declares null and void any promises we make for the future that, for whatever reason, we are unable to fulfill notwithstanding our good intentions.

Maybe the prayer looks back in time too, to declare null and void any promises we previously made that were unfulfilled notwithstanding our good intentions at the time.

Thus, in this way, we are also permitted to forgive ourselves, and thus to repair ourselves.

Certainly, for most practitioners, mediation’s goal is to resolve disputes, specifically litigated claims, and to settle cases.

Sometimes there is more to mediation than simply finding a way to end a lawsuit.

There are opportunities in mediation to repair the world and to repair ourselves.

Sometimes in mediation people can go deeper into the underlying emotional turmoil of the dispute to find ways to resolve the larger, the internalized intimate human conflicts that led to the dispute in the first place.

Some believe that the causes of conflict are deep within the people themselves.

Occasionally, when the participants in mediation allow for it, I have seen people think deeply about the circumstances and their feelings which have led to the conflict.

Sometimes, I have seen people apologize and seek (and receive or grant) forgiveness.

This is how they use the opportunity given in mediation to repair the world around them, and to repair themselves.

It takes a special time and place for this to happen, and a willingness to go beyond the dollars and cents of resolution, to reach inward for reconciliation, renewal, and peace.

It is not unlike the thoughtful moments of these days of Awe.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California, with a business website at http://karpmediation.com , who, consistent with the them of this piece, takes this opportunity also to apologize for whatever he has done or not done that has hurt another person and to seek forgiveness from him or her.

Negotiating, Changing One’s Mind, and Following Through: A Biblical Perspective.

I was inspired today —  to write about negotiating, changing one’s mind and following through — by the biblical story of Hannah (1 Samuel 1:1 – 2:10) which is one of the special readings for Rosh Hashanah (the Jewish New Year).

In the story, as you might recall, Hannah is barren and desperately wants a child. At the Tabernacle at Shiloh, she pleads with the Almighty to bless her with a son; Eli the High Priest hears her prayer and blesses her. Later, a child (Samuel) is born to Hannah, and, after Samuel is weaned, she entrusts Samuel to Eli that the child should serve G-d during his lifetime.

Or something like that….

So, what does a mediator see in this story?

Well, how about this:

Hannah has an unrealized need/interest/goal – that of having a child. 1 Samuel 1:2-8

In the story, her situation is not of her own doing (“for the Lord had shut up her womb”). 1 Samuel 1:6. See, http://www.chabad.org/library/bible_cdo/aid/15830/jewish/Chapter-1.htm#v=1

She would like to change the situation so she enters into a negotiation with G-d: If You will give me a child, I will devote him to a lifetime of service. 1 Samuel 1:11.

The Almighty understands Hannah, considers the proposal, changes His mind (from barren to fertile for Hannah), and, through His representative, Eli, accepts. 1 Samuel 1:17.

The deal is made and Hannah goes away satisfied. 1 Samuel 1:18.

Later, Samuel is born, and after he is weaned, Hannah fulfills her part of the bargain, delivering Samuel to Eli to serve the Lord. 1 Samuel 1:27-28.

Ultimately, the deal is done, the needs and interests of the Parties have been met, and all is well. 1 Samuel 2:1.

What can we learn from this that is applicable to mediation?

Well, how about this:

Unspoken, unrealized needs and interests make people unhappy.

Sometimes, something can be done about the situation through negotiation.

When one side explains, the other side can understand, and people can change their minds.

When agreement is reached, people can be satisfied.

And, when the deal has been made to everyone’s satisfaction, there is a much better chance that people will do what they promised to do.

Wishing you a Good and Sweet New Year and satisfactory negotiations and outcomes.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California who sometimes learns from traditional teachings. His website is at http://karpmediation.com .

Inspiring Settlements

Many years ago, in a mediation between two disputing Chinese American gentlemen, one of them made a settlement offer to the other in an amount based upon a number with mystical meaning in their culture.

If I remember correctly, it was based a number that was lucky or propitious, maybe the number 8 which is a lucky number in China, at least according to this website: http://mysticalnumbers.com/number-8  .

(Maybe the offer was $80,000 or something like that.)

The number did not settle the case but it did get the parties off to a good start and they negotiated successfully to conclusion.

Much more recently, I inspired a settlement in a similar fashion by talking about the number 18, which has meaning in the Jewish tradition.

In Hebrew, letters are used to express numbers. The letters that add up to 18 spell out “Chai,” the word for “life” in Hebrew (as in “L’Chaim” [To life!]).

When I make donations for instance, I often make out my check for $18.00 [“Chai”] or $36.00 [“Double-Chai”] or some other multiple of $18.00. In that way, not only am I giving a monetary amount that feels right under the circumstances, I am sending a message that suggests life or good luck as well. See, http://judaism.about.com/od/judaismbasics/g/chai.htm

The parties in this mediation had not yet reached agreement on a number, but they were continuing to get closer. After the initial sparring, the defendant came up to around $6,000.00 +/- to settle the case; the plaintiff wanted around $32,000 +/- . In subsequent moves, the defendant moved up some more and the plaintiff moved down. Whatever they did, the midpoint remained at just under $20,000.00.

As a creative suggestion ultimately to bring the parties together when they got stuck, I talked with the defendant about the number 18 and “Chai.” I remarked that the Plaintiff and his attorney (both of whom happened to be Jewish) would recognize the gesture if the defendant offered $18,000.00 to close the deal.

The defendant made the offer, the plaintiff recognized the significance of the number and smiled, and the case settled at or near $18,000.00.

As mediators, we use whatever we can from our own backgrounds and experiences to inspire the settlements the parties ultimately want.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

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