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A Negotiation at the Hollywood Bowl.

Last night, my wife and I attended a summer concert at the Hollywood Bowl where we witnessed a negotiation that turned out quite well actually.

The negotiation took place between the musicians of the Los Angeles Philharmonic Orchestra and its guest conductor.

You probably know this:

Each of the musicians is a top professional and each has personal pride in performing. Each has a vision of how the music should be played, and there is probably more than a little ego involved.

The same is true of any guest conductor.

So here’s what they did:

They negotiated: when to start, when to stop, what tempo, what dynamics (i.e., how loud or soft), when to play out (e.g., solo vs. ensemble playing), when to subordinate to another musician playing a different line of music vs. when to join in, and so much more.

Inasmuch as each musician wants to shine, and so does the conductor, there is a constant struggle over who is in control of the performance and how it will go.

(Sort of sounds like a mediation, doesn’t it?)

Anyway, the concert was excellent. Here’s why:

Orchestral performance is a collaborative, balancing process.

That is, there’s a lot of give and take, and people have to work together for it to come out right.

Just like in mediation.

***

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

Attorney Competence at the Mediation Table.

I mediated with a really good lawyer the other day. Here’s what I mean:

• Her case was ripe for mediation: she had undertaken and completed sufficient discovery so that she knew her case and the other side’s case well.

• She had well prepared her client in advance and both were ready with realistic expectations and a plan for negotiation.

• In advance, she had sent to me and to the other side an enlightening and useful mediation statement.

• She participated with me in a private pre-mediation telephone conference that helped us both.

• She understood the process and participated fully in the mediation, advocating zealously and meaningfully but not overly aggressively or emotionally; she never lost her composure.

• She asked perceptive questions and really listened to the responses; she understood the needs and interest of both sides of the dispute.

• She understood, allowed, and used the pacing of the mediation to negotiate and she adapted to the moves of the other side.

• She managed her client well so that they were unified in their approach, but knowingly let the client speak because the case was the client’s and not hers.

• She allowed me as mediator sufficient latitude in the management of the negotiation to say and do what needed to be said and done and she never got in the way.

• When the parties finally came to terms, she presented a pre-prepared settlement agreement (with a few blanks for negotiated deal points) which she had drafted and brought for use if the negotiation yielded a deal, and which was acceptable to the other side.

Of course the negotiation was challenging and no one presumed that it would result in resolution; nevertheless the mediation was made easier and more likely to succeed by the competence of this attorney, who really helped both in the dispute resolution process and in the resulting settlement of the case.

Congratulations to her (and to her client) for a job well done and for being a good example for others.

***

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

Are you a pirate?

Did I ever tell you my story about being a pirate?

Well, I’m not a pirate, I just don’t hear so well, although now I have hearing aids which help a lot to overcome these kinds of incidents.

But let me tell you my pirate story…

I had a call on my office phone one day from a volunteer with whom I was working in Scouting.

It sounded urgent, so I returned the call and spoke to his wife who answered.

I explained that I was returning a call that sounded urgent and was met with the question:

“Are you a pirate?”

“AM I A PIRATE?” I responded.

“NO, I’M NOT A PIRATE!”

<pause>

“Not pirate, pilot. My husband is a pilot and he’s just leaving for work,” she said.

“Oh, I said, I guess I didn’t hear that right. Have him call me when he returns.”

Later, I told this story to my cousin and best friend who has since passed away.

Often thereafter, when seeing one another he would greet me simply with “ARRRGH” and we’d both laugh hysterically.

I miss him terribly, but think of him often, especially when I tell this story.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who now wears hearing aids that overcome these kinds of audio bloopers, mostly. Don’t worry, he also listens very carefully in mediation. His website is at http://karpmediation.com .

Feeling Nostalgic about Summer Camp

This has nothing to do with mediation. I just want to write about something else today.

I joined a Facebook Group called “I Went to a New Jersey Y Camp,” because I DID go to a New Jersey Y Camp!, from 1963 to 1967. See, https://www.facebook.com/groups/2210701066/

So I have been feeling nostalgic reading the posts and seeing the pictures in the Group today.

I was really lucky, thanks to my parents/grandparents, to go to a “Y” Camp for eight weeks every summer for five years.

This was the summer sleep-away camp of the YMHA-YWHA of New Jersey, called Cedar Lake Camp located in Milford, PA, far away from home.

It was run in the Conservative Jewish tradition which was fine with me, as I learned a lot about myself and Judaism in those years, participating in religious services and being immersed in Jewish culture and so forth.

Every summer I had wonderful camp experiences: making friends and renewing friendships, swimming in Cedar Lake twice daily, going sailing, canoeing down the Delaware River, learning photography, listening to short wave radio, weaving baskets and making pottery, sharing comic books, hearing and telling stories, singing songs, performing in plays, having cookouts, growing up.

So let me tell you what I’m remembering (probably not completely accurately) about growing up at camp, this as a result of seeing a posted picture today of an adolescent boy with his arm around an adolescent girl:

It’s 1967 and I’m 13 years old. It’s my last summer at camp because our family is moving to California.

The summer is really “in tents,” literally.

That is, I have graduated from the younger Divisions that are housed in cabins, and am now in a US Army Surplus tent on a wooden platform that sleeps four campers (without the counselor!) down by the lake.

Someone is calling my name outside the tent because I am always a willing substitute for a camper who doesn’t want to go on the canoe trip scheduled for his group (his “Bunk”).

So, I am going.

This time I am lucky. It is a coed canoe trip (the first in my experience), with some of the girls from the same age group down the hill at Camp Nah-Jee-Wah.

And Debbie is going (not her real name).

I’m a little scared but excited because, in my overactive adolescent imagination, she might just be my first camp girlfriend.

Who knows what can happen!

Well, nothing really happened after all.

The canoe trip was three days. Debbie and I canoed together, we ate together, and finally we slept together — but don’t get the wrong idea.

We slept in our own sleeping bags under the stars; Debbie only agreed that our sleeping bags could be in the same campsite together.  We were only 13 after all.

But I had a wonderful time, and I still have great memories, still fueled by my adolescent imagination.

I think that nothing ever came of it between Debbie and me that summer, except that I really felt that camp was helping me to grow up.

And this was a big deal for me then.

So, here’s my thanks to Cedar Lake Camp … and to Debbie … for my really memorable camp experiences.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who sometimes wistfully longs for “the old days.” His business website is at http://karpmediation.com .

BSA Is Changing (I Hope), Which Is Laudable, but Only Because it Must.

Because of all of the good qualities of the Boy Scouts of America as an excellent youth development organization, I was a very active adult volunteer in BSA for many years.

Some of my volunteerism in Scouting, of which I am very proud by the way, is summarized on my website at http://karpmediation.com/vol.html .

At the same time, because of BSA’s detestable policy excluding gays in leadership positions (my opinion), I was a very vocal advocate for change from within.

See, http://karpmediation.com/resources/myviewsoninclusivescouting.pdf

17 years ago, I negotiated an amendment to the Charter Agreement of Temple Beth Hillel, the oldest Reform synagogue in the San Fernando Valley (metropolitan Los Angeles area), to enable it to sponsor a Cub Scout Pack and later a Boy Scout Troop.

Those units, inclusive without regard to sexual orientation from their inception, are still thriving 17 years later.

The amendment said this: “We select our leaders based upon values that we find important to our faith.”

This prescient sentence now encapsulates the imminent change in the BSA policy, which is to say that the national prohibition will go away and that sponsoring religious organizations will be able to choose for themselves whether or not to allow gay leadership in their scout units.

This is certainly an improvement, as it allows more liberal religious organizations the freedom to sponsor scout units and to choose adult leadership without regard to sexual orientation.

It also allows the status quo for conservative religious organizations.

This imminent change comes about, not because BSA has had an epiphany that it was wrong to exclude gays from leadership, but for more practical reasons.

Notwithstanding the decision in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), upholding BSA’s right to exclude gay leaders, BSA probably now realizes that Dale would not be so decided today, given the dramatic evolution in gay rights culminating most recently in the marriage equality decision in Obergefell v. Hodges, 576 U. S. __ (2015).

Even more recently, “the Equal Employment Opportunity Commission ruled that sexual orientation discrimination is already illegal under Title VII of the Civil Rights Act of 1964.” See, http://www.slate.com/blogs/outward/2015/07/16/sexual_orientation_discrimination_at_work_eeoc_says_it_s_illegal_under_federal.html

This is probably equally problematic for BSA which undoubtedly prohibited avowed gay individuals from working for BSA at scout camps and the like.

In the face of the dramatic and fast-moving legal trend favoring LGBT rights (at last!), BSA probably now fully realizes the tremendous economic and social cost of defending its (indefensible) gay exclusionary policy in courts across the nation, in administrative hearings, in the media, and in its own councils and scout units.

That is the reason, I think, for the change.

Nevertheless, I applaud the BSA for taking the lead from its National President, Former Secretary Robert Gates who said at BSA’s National Annual Business Meeting in May 2015, “We must deal with the world as it is, not as we might wish it to be.”

I welcome the change.

***

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

Lack of Trust in the Iran Nuclear Deal

Certainly the stakes are high in the recently brokered Iran Nuclear Deal, now the subject of much debate and Monday Morning Quarterbacking.

(See, https://karpmediation.wordpress.com/2012/05/26/the-monday-morning-quarterback/ )

At bottom, the fear is that Iran will not live up to its end of the bargain and, with economic pressures lessened, Iran will perform an end-run to improve its position during the next ten years, increasing the risk, threat, or likelihood of terrorism, nuclear war, obliteration of Israel and the Western World, etc. etc.

On a much smaller scale, I see similarities here with the lack of trust among disputants in the mediations I conduct.

Such lack of trust is usually based upon prior conduct of the person perceived as not trustworthy.

For example, someone will argue: “He or she has breached our agreement before, what’s to prevent him or her from doing so again?”

“Well, it’s a risk, but what are the alternatives?”, I often ask.

(I think I heard President Obama voice the same sentiment.)

I also suggest sometimes that the settlement, once agreed in writing, can be enforced by the court in most circumstances, which is an improvement in the position of the parties and often makes the deal better than no deal.

I think the message in the Iran Nuclear Deal is, like a prior President famously suggested, “Trust but Verify.”

Or maybe it’s “Verify, Verify!”

Hopefully that is enough, but nevertheless, this is a hard sell for the President given the stakes.

Others think that a better deal could be struck. Maybe, but I’m skeptical:

With at least 17 consecutive days of intense negotiation, and with an acute awareness of the give and take of negotiation and compromise, maybe this is the best deal under the circumstances.

We will have to see what Congress does, although I perceive a lack of trust of Congress as well.

Maybe, when all is said and done, the Yiddish Proverb will carry the day:

A shlekhter sholem iz beser vi a guter krig.” (A bad peace is better than a good war.)

Just my thoughts on the subject….

***

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

Using Mediation to Streamline the Litigation Process

The other night my wife and I watched the new Helen Mirren film, “Woman in Gold,” based on the true story of the recovery by Maria Altmann of the magnificent painting by Gustave Klimt of her Aunt Adele, which painting (and others) had been stolen from her family by the Nazis during the occupation of Austria.

The film was so interesting on so many levels, including: the life and times of enormously successful wealthy European Jewish families; the injustice and horror of the Nazi era; the relationship of Altmann’s lawyer to musician and composer Arnold Schoenberg; and the U.S. Supreme Court case that emanated from the dispute (Republic of Austria et al. v. Altmann, 541 U.S. 677 (2004).

Even so, the film captured my attention as a mediator.

In the film, following the Supreme Court’s decision on the retroactivity of the Foreign Sovereign Immunities Act of 1976 (28 U. S. C. § 1602 et seq) and the return of the case to the trial court (USDC, Cent. Dist. CA), lo and behold, a mediation takes place.

In the mediation, the representative for Austria refuses to negotiate for settlement less than full capitulation by Altmann.

Not willing to give up, Altmann’s attorney wisely offers an alternative:

Rather than settling on the main dispute, given such intransigence on the part of his opponent, Attorney Randy Schoenberg offers arbitration of the dispute in Austria as a solution, to which his client and the Austrian representative ultimately consent.

The arbitration shortcuts the protracted litigation in the District Court, saving time and money, and ultimately yields the return of the painting (and some others).

But the point is that the mediation streamlines the litigation process.

This is a result not to be overlooked.

Some cases cannot or will not settle at mediation. On the other hand, wise counsel may use the mediation forum to agree on procedural steps that will save the clients both time and money.

For instance, the mediation can be used to agree on discovery scheduling, or stipulations as to certain facts, or even an alternative forum for dispute resolution – like arbitration or an Expedited Jury Trial under Code of Civil Procedure §§ 630.01-630.10. See, http://www.courts.ca.gov/documents/ejt010info.pdf .

And, as to the Expedited Jury Trial process, above, the mediation can even be used to negotiate, for later use, a “High/Low Agreement” that “specifies a minimum amount of damages that a plaintiff is guaranteed to receive from the defendant, and a maximum amount of damages that the defendant will be liable for, regardless of the ultimate verdict returned by the jury.” C.C.P. § 630.01 (b).

This is a great tool where otherwise there might be impasse and no settlement at all.

Accordingly, the mediation need not end without any agreement: the parties can utilize the mediation process to streamline the otherwise time-consuming, costly, and unpredictable litigation in which they are embroiled.

***

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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