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.
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 .
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 .
I am thinking of two mediations in which one matter settled and the other did not.
They were strikingly similar because of their context (both were real estate mediations involving Buyers and Sellers) and because of their timing (pre-litigation). Also, although the legal issues in both were not the same, they were straightforward and were typical of disputes within residential purchase and sale transactions.
The mediations were starkly different however because of the way in which the disputants and their lawyers conducted themselves.
In the dispute that settled, both sides were receptive to listening and hearing about other side’s viewpoint, not to agree with it or to be persuaded by it, but to learn about and to understand the other side’s perspective.
For it is always a person’s perception that guides his or her negotiation.
In the dispute that did not settle, some of the people only listened to themselves.
Despite all efforts, they did not listen, did not hear, did not learn from and did not understand the other side, at all.
They did not want to listen to the other side and were not willing to go there.
They only heard themselves.
I read one of those platitudes the other day that floats around on Facebook. It was attributed to Frank Zappa and went like this:
The mind is like a parachute; it only works if it is open.
I think he was right, and I saw the results in both mediations.
The one in which people really listened came to a safe landing.
The other crashed.
David I. Karp is a full time mediator of real estate and business disputes in Southern California. For more information, please go to his website at http://karpmediation.com .
I turned down a Starbucks gift card last night from a lawyer who intended it only as a gesture of hospitality and appreciation.
I turned down the gift card even under circumstances where I thought it was probably OK to accept it because of the circumstances in which it was offered.
I did so because I take seriously the ethical considerations under which I must guide my conduct as a Neutral and I always err on the side of caution.
At the time I turned down the gift card, I was fully aware of a constraint on Neutrals in Court-Connected mediations that has guided me for years in all mediation circumstances. California Rule of Court 3.859 (d) states:
“A mediator must not at any time solicit or accept from or give to any participant or affiliate of a participant any gift, bequest, or favor that might reasonably raise a question concerning the mediator’s impartiality.”
Also, at the time I turned down the gift card, I was aware of an opinion issued on August 26, 2014, by the California Supreme Court Committee on Judicial Ethics Opinions entitled, Accepting Gifts of Little or Nominal Value under the Ordinary Social Hospitality Exception. See, http://www.judicialethicsopinions.ca.gov/sites/default/files/CJEO_Formal_Opinion_2014-005_0.pdf
(I construe judicial ethics opinions as applicable also to Neutrals like me, as we occupy a quasi-judicial role in mediation and certainly in arbitration.)
A colleague of mine, Dina Haddad, wrote on LinkedIn about the foregoing judicial ethics opinion in the following way:
“California Supreme Court Committee has banned judges from accepting small gifts, such as tickets to local events and food items, because they can cause the appearance of influence, favor, or advantage.”
The opinion itself is not so straightforward and suggests that it is only advisory and subject to the discretion of the judge under the circumstances. It says:
Items of little or nominal value are subject to the canons governing gifts. Under canons 4D(5) and 4D(6), judges may not accept items of little or nominal value if the gift is offered by a party, if acceptance of the gift would create a perception of influence, or if a reasonable person would believe that advantage was intended or would be obtained by acceptance of the gift.
Id. at p. 14.
In the committee’s opinion, items of little or nominal value that are not otherwise banned may be accepted under the ordinary social hospitality exception in canon 4(6)(g) if the gift is ordinary by community standards, offered for social traditions or purposes, and hospitable in nature.
Even so, I tend toward overreacting to ethical constraints and over-compensate, erring on the side of “that’s very kind of you but no thanks” to avoid any possible appearance of impropriety.
I don’t even let other attorneys pay for my lunch when offered, congenially replying that “I am a Neutral and that I don’t want to have to disclose it next time we work together in mediation.”
Maybe turning down lunch or a gift card hurts the offeror’s feelings, or maybe it’s perceived as rude, and maybe rigidly applying ethical rules is overdoing it, but I sleep better at night for it regardless.
That’s just how I am about these things.
David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .
Last night I heard a fine performance of Aaron Copland’s Appalachian Spring at the Hollywood Bowl.
Because Copland’s music has always impressed me as very complex yet simple in sound, I found irony in Copland’s use of the Shaker melody, with the given name “Simple Gifts,” in the piece.
Ironically, I also found myself musing over a recently conducted mediation that was very complex but became more manageable and therefore simpler as the day progressed.
The mediation became simpler for me by recalling for myself three cardinal rules I learned from Fisher and Ury’s seminal work, Getting to Yes, and by using them as a guide.
Those simple rules are: (1) Separate the people from the problem; (2) Focus on interests not positions; and (3) Insist on using objective criteria in negotiation. Fisher, Roger and Ury, William. Getting to Yes: Negotiating Agreement Without Giving In. New York: Peguin Books, 1991 (2nd ed., Bruce Patton, Editor.)
After ten years in mediation practice, these rules still help me to guide the participants in my mediations toward resolution.
In this recent mediation, two former business partners needed to finalize the dissolution of their ended partnership. The partners continued to be plagued by those enduring emotions of anger, regret, resentment, humiliation and disappointment over the prior business relationship. Yet they both really wanted to put the past behind them and to move on.
To “separate the people from the problem,” at one point in the session I named these natural emotions that the participants were experiencing. With empathy, we talked about them with the goal of getting past them at least to make way for a rational discussion of the issues they needed to negotiate.
To “focus on interests not positions,” we reviewed (among other private matters that will remain private) the likely financial and opportunity costs of not settling, the distraction and impact of pending litigation on business and family pursuits, and the desire for closure and a fresh start.
To deal with the “objective criteria” for the negotiation, we consulted jointly in the mediation with a forensic accountant that the parties together had wisely engaged.
Through this process, the partners were able to simplify their complex financial entanglements, to narrow their otherwise overbroad list of issues, and to find a solution that met their needs and interests.
As I write this now, the lyrics of “Simple Gifts” seem perhaps corny but relevant in this context, although I didn’t think of them at the time of the mediation:
‘Tis the gift to be simple, ’tis the gift to be free
‘Tis the gift to come down where we ought to be,
And when we find ourselves in the place just right,
‘Twill be in the valley of love and delight.
Of course, at the end of the mediation it was not really the “valley of love and delight.” Mediators rarely get to see such imagery in their mediation sessions, and those are 1848 lyrics anyway.
Yet, as the next line of the song suggests, “simplicity was gained” and the parties did find an outcome they could live with.
For me as mediator, the work of Fisher and Ury continues to help me “keep it simple” and Getting to Yes continues as one of the “Simple Gifts” that guides my work.
I always recommend reading or rereading it.
David I. Karp is a full time mediator of real estate and business disputes in Southern California and a fan of Aaron Copland’s music. For more about Mr. Karp professionally, please go to his website at http://karpmediation.com .
Through the window the august sun rises brilliantly in the east.
The light awakens her and she rises from her soft slumber.
My eyes open slightly and I see her move about.
She stands with her exquisite back to me as she dresses.
I see the beauty of all of her as she begins her day.
There is a smile on my face now as I look at her.
It is the same gladness I have felt for 33 years,
The same adoration since before our marriage began.
Her luminosity draws me to her, she awakens my soul and more.
I rise warmly from repose and greet her.
We embrace in the transcendent radiance that surrounds us.
Through the window the eastern sun smiles at our union.
David I. Karp is a full time mediator of real estate and business disputes in Southern California and occasionally an amateur poet. His business website is at http://karpmediation.com .