I had a mediation recently in which a disputant was so “myopic” (he could only see his side of the situation) and was so entrenched in his own view of the way the compromise should go (the other person should compromise further, not him) that I didn’t know if we would ever get anywhere with the negotiation.
After a short break (which I needed in order to manage my own frustration in the moment), I had the idea to ask him, which I did on my return: “If you were the other person, what would you say needs to be done to get the case settled?”
As a result, I got him to tell me – as if he were the other person – what he himself needed to do to make the deal.
And then he did it.
In another mediation some time ago in which I was similarly stymied, I thought to ask the disputant to change roles with me – she would be the mediator and I would be her.
Then I asked for “a mediator’s proposal.”
Sure enough, after a thoughtful pause, she told me exactly what she herself needed to do to make the settlement.
Sometimes, this “role reversal” will get people to see beyond themselves, or to see themselves as if they were a third person looking in.
And sometimes, this simple change in perspective helps them to move from their stuck positions in negotiation, and helps them to get to peace.
David I. Karp is a full time mediator of real estate and business disputes in Southern California. For further information about him, please visit his business website at http://karpmediation.com .
I was reminded the other day by an attorney that an impending mediation could not be set during “The Three Weeks.”
Fortunately, thanks to Hebrew School and YMHA sleep-away camp when I was a boy, I was already dimly aware that “The Three Weeks” refers to a traditional period of mourning, in the summer for observant Jews, over the destruction of the First and Second Temples in ancient Jerusalem, among other things.
It is a period of sadness, and, for some, tradition imposes a number of restrictions on activities and celebrations (e.g. no weddings and apparently no mediations either).
Thus we have scheduled the mediation earlier so as not to interfere with this period which, this year, runs from July 15, 2014 – August 5, 2014.
Later, I googled “The Three Weeks,” and found this page: http://www.chabad.org/library/article_cdo/aid/144558/jewish/Tisha-BAv-and-the-3-Weeks.htm .
After reading, I borrowed the title of this piece from there: Destruction and Renewal. Thank you.
Focusing not on “destruction” but on “renewal,” it made me think of how I will spend this summer, which, like most summers, includes the usual slow-down in the business of the mediation business, as lawyers, judges, litigants and other disputants and their families take off time to enjoy their summer vacations and the like.
For “renewal” I thought I too would take the time for family and for professional enrichment, sometimes both together.
For instance, this summer, I plan to attend a mediation course in Seattle and we will make a mini-vacation of it – our son lives there.
Also, we will be enjoying a number of outstanding summer concerts at the Hollywood Bowl.
In addition, I will volunteer a day maybe two for the California Court of Appeal, to help with its Appellate Mediation Program.
The goal is thus refreshment and renewal … and re-invigoration for the practice of mediation.
For, in mediation practice, we observe destruction due to conflict and we hope to help with renewal via the management of conflict and the resolution of disputes.
David I. Karp is a full time mediator of real estate and business disputes, primarily, in Southern California. For further information, please go to his website at http://karpmediation.com .
Mayor Shinn in The Music Man famously said, “You watch your phraseology!” Good advice.
As I’ve seen many times in the course of mediation, one side makes what it perceives to be a carefully thought out, good faith proposal designed to attract the other side into the negotiation, to move the negotiation forward, and/or even to settle the dispute.
The other side responds immediately and rashly with “That’s ridiculous” or “That’s bad faith” or “That’s insulting” or “No way, I’m going to court” or any number of similar emotional reactions.
If heard (or if read in a direct communication by email from one side to the other), those messages often turn off the other side and stop the negotiation; they disrespect the person making the offer and show no appreciation for the effort that went into crafting the offer in the first place.
Often these responses occur in the heat of the moment or at the height of advocacy; yet they fail to signal or support the kind of collaboration, cooperation or engagement which is usually necessary for people to reach an agreed outcome that works for both sides.
They just make people mad.
Worse, they sometimes escalate the conflict.
What if, instead, the respondent were to say, for instance: “Sorry, no, that doesn’t work for me because….”
Revealing a rational basis or a substantive reason for the rejection of an offer, in a non-antagonistic way (read as factual as opposed to emotional), allows both sides to consider where to go next.
The respondent could add, “Here’s what works for me and why…” and/or “Here’s a counter-proposal that may help us both.”
Sometimes it’s the small things, the words chosen, that can make all the difference.
If a mediator is involved and is permitted to do so, the mediator, acting as a filter, can help deliver the message indirectly and in a more diplomatic way.
The mediator may cause the shift in language by asking the respondent, in private, first, “Is that really the message you want to send?” or suggest, “Let’s rephrase that.”
The goal is to improve the situation, not to aggravate it.
David I. Karp is a full time mediator of real estate and business disputes. His website is at http://karpmediation.com . He apologizes for an ads affixed to this post by wordpress.com. They are not his.
The usual pattern of negotiation ensues. The mediator makes his or her introduction. Private caucuses prepare the parties for negotiation. The negotiation begins.
Offers and counteroffers pass from one side to the other. The demands inch down, the offers inch up. Concessions are made.
Finally, one side gives up a significant term for settlement, which causes a big shift on the other side.
The parties close in on a practical range of settlement.
It’s pretty routine. And they get to terms.
Or maybe they don’t.
What if suddenly one side changes its mind late in the game?
Or changes the routine?
Or takes a detour from the plan?
What if a person suddenly rejects a deal that is nearly done?
Or backtracks and puts a term back on the table that was off the table before?
Or now starts trading across issues (often called logrolling)?
Or just has a tantrum that changes the dynamics of the negotiation?
Maybe suddenly there are new and different demands.
Suddenly, the negotiation is wide open again.
Whether these changes simply reflect the anxiety of the situation, or someone’s unhappiness with where the negotiation is going and/or her fear that a mistake is being made…
Or whether this is actually a planned strategy of negotiation…,
The negotiator facing these changes must not be surprised or caught off guard.
Expect the unexpected.
Assume that everything is a strategy in order to maintain your buoyancy in the changing tide.
Ultimately it is.
David I. Karp is a full time mediator of real estate and business disputes in Southern California. For further information, visit his website at http://karpmediation.com .
In recognition of Shavuot this week, celebrating the giving of the Law at Mt. Sinai, here are ten commandments that come to mind for me in my mediation practice.
1. Be present.
2. Show kindness and compassion.
3. Listen really well.
4. Be empathic.
5. Facilitate understanding.
6. Give them lunch.
7. Remain impartial.
8. Remember, this is their mediation not yours.
9. Be persistent.
10. Do no harm.
David I. Karp is a full time mediator of real estate and business disputes in Southern California. See http://karpmediation.com for further information.
Anger. Resentment. Callousness. Distrust. Indifference. Hard feelings all around.
Although they had been friends for many, many years, they were not speaking to one other at all at their mutual workplace.
The business relationship of a few years had broken down and their personal friendship of many more years had fallen apart.
Both were suffering under the weight of their conflict.
To avoid imminent litigation, they agreed, although skeptically, to participate in mediation to see how they could end their business partnership with the least harm.
After brief private introductions with each, the mediation began with everyone together for a joint session.
The disputants were given choices on how they would like to proceed and what they would like to discuss.
They chose to stay together for awhile.
Actually, they ended up staying together for the entire session.
With guidance from counsel, the disputants began to explore alternative business solutions for their predicament (examples are wind up and dissolution, sale, buyout, etc.)
Ultimately, they agreed, together, on the most palatable way for both to end their business relationship, and they discussed and agreed on the details.
In the course of the discussion, as mediator, I checked in with each in the presence of the other, to restate, to clarify, to question the meaning of something said, and ultimately to lead to a deeper mutual understanding of both the problems they faced and the solutions they were choosing.
Along the way, a deeper conversation began between them. Difficult things to say were being said. Difficult things to hear were being heard.
With mutual respect, there was no anger or defensiveness. Instead, there was acknowledgment and even some apology and forgiveness.
As mediator, with sensitivity for what was occurring and with courage, I remained silent (actually for a long time) as this was their mediation, not mine.
The conversation had transformed into that amazing heart to heart communication that only comes from the careful orchestration of the mediation and the mutuality of the moment.
A fresh start for these two disputants was well underway as the settlement agreement was being drafted by counsel: the jocularity of their longstanding friendship had returned, the creases on their foreheads had smoothed out, and they were again mostly at ease with one another.
The anger, resentment, callousness, distrust, indifference, and hard feelings had dissipated.
In their place was the warmth of their past shared experiences, the satisfaction of their present resolution, and their own hope for a better future, for each other and for themselves.
It was a transformative mediation for them, and for all who participated.
David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com . He apologizes for any ads affixed to this post by wordpress.com; they are not his.
I have been thinking about the difference between jubilation and gloating.
I came to this subject from reading and thinking about the seventh day of Passover, an important day of observance for some and a day of less intensity for others.
Tradition informs us that the miracle of the parting of the Red Sea occurred on the Seventh Day of Passover. (See, http://www.chabad.org/holidays/passover/pesach_cdo/aid/1699/jewish/The-Seventh-Day-of-Passover.htm )
Putting aside its religious content, this passage from the article resonated with me: “Holidays were not given to Israel to mark the downfall of her enemies. Rather, they were ordained to commemorate Israel’s salvation.” (Id.)
Thus, we do not celebrate the drowning of our oppressors at the Red Sea, but rather our freedom from them.
It is not in the Jewish tradition to rejoice in the downfall or misfortune of one’s enemies.
Gloating is “[observing or thinking] about something with triumphant and often malicious satisfaction, gratification, or delight <gloat over an enemy’s misfortune>.” See, http://www.merriam-webster.com/dictionary/gloat
While still in law practice years ago, I saw gloating in court when someone won at trial or at an important hearing.
Now, in mediation practice, thankfully, I have observed jubilation but not gloating.
Jubilation is “an expression of great joy.” See, http://www.merriam-webster.com/dictionary/jubilation
Thus in mediation, when parties have finally found agreement with one another concerning the resolution of their dispute, I have seen the visible signs of their relief, their satisfaction or acceptance of the outcome, and their joy in managing the conflict and putting their disagreements behind them.
So why do parties feel jubilation or at least satisfaction in mediation? In my view, it is because they have participated in deciding the outcome. They have voluntarily exercised their self-determination to reach a result they can live with; they have acknowledged their own – and their opponent’s part – in the process, and they have come to terms with the underlying emotional content of the dispute.
Why no gloating? Neither side has defeated the other. Through their joint efforts, the participants have reconciled, either with one another or with their own feelings about themselves or each other, and they have not been led astray by their natural urges – which arise from conflict – for punishment, retribution, revenge, vindication or the like, or even by their “need” to prove that they are right and the other wrong.
David I. Karp is a full time mediator of real estate and business disputes who is thoughtful about human nature and the lessons of tradition. His website is at http://karpmediation.com .