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Using Mediation in New Ways to Achieve Other Salutary Goals

In the real estate and business mediations I mostly conduct, and in those with which the legal community is mostly familiar, the usual goal of the parties is to settle a contested claim and to avoid further, or any, litigation.

In these kinds of matters, as mediator I am usually called upon to help the parties to negotiate an agreement in which one side agrees to pay a certain amount of money, and the other side agrees to stop, or never to start, any litigation over the dispute between them.

Although each mediation session is unique and can be very exciting/challenging (in terms of the subject matter, the personalities of the participants and the negotiation itself), these mediations are fairly standard in the industry.

Occasionally, something else comes up and the parties have other goals in mind for which they choose to use mediation.

Utilizing mediation to reach these other goals constitutes an expansion of mediation into other areas beyond simple case resolution, areas that other practitioners may not be considering.

And these mediations can be exciting and challenging for a mediator like me as well, and equally productive for the parties and their counsel.

Here are just two examples:

1. In one mediation, convened after the money part was agreed through direct negotiation between the lawyers, I was called upon to orchestrate an apology between the two clients.

The apology was necessary and appropriate to seal the deal and also to provide closure for the disputants.

2. More recently, and on several occasions now, I have been called upon to help renegotiate commercial leases between property owners and their commercial tenants. (Certainly in these mediations there was disagreement between the two sides, and sometimes there were disputes rising to the level of litigation, but these mediations were focused on negotiating the terms of a new lease.)

These lease negotiations were necessary and appropriate because the parties were interested in continuing or improving their commercial relationships with one another and because both sides saw that they could do better together than apart.

In both of these examples, the mediations were being used in new ways to achieve goals beyond, or instead of, litigation.

In both of these examples, the mediations were suggested by knowledgeable, savvy attorneys seeking to serve the needs, interests and priorities of their clients.

From both of these examples, I hope that the reader will be inspired to think of using mediation in new ways as well, to achieve other salutary goals for themselves or their clients.
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David I. Karp is a full time independent mediator of real estate and business disputes, and more, in Southern California. His website is at http://karpmediation.com .

Improvising and Taking Risks

As a student trumpet player, I was first exposed to improvisation in a junior high school jazz band. I wasn’t very good at it at first. I hit wrong notes or played out of key.  Sometimes it was pretty jarring.  I just couldn’t follow or get in tune with what the others were playing.

Consequently, it was always much safer for me to play what was already written.

Later, by the time I was graduating high school, I was doing better at improvisation. I had had more practice.

With an ear for the music and some intuition, I listened better to what was going on around me, and responded as best I could with my horn, sometimes actually earning the applause the audience politely gave.

Sometimes, I made great music, not always.

But I learned that if I didn’t try, and take some risks on the spot, nothing good would ever come of it.

My development as a mediator was not unlike my development as a trumpet player.

At the beginning, I made all the safe moves that had been taught in those introductory mediation courses we all took.

I had my script and followed it. The moves were predictable. The results, sometimes glorious, mostly were ordinary. The easy cases settled because they were going to settle anyway. The harder cases? Well, that was a different story then.

At that stage, as with my early musicianship, I wasn’t really that much in tune with my surroundings.

And I didn’t improvise too much then, which I know now calls for more of a willingness to change the tune or the tempo, to adapt to the music or the moves of the other players, or to develop a new theme or take the chance with a impromptu solo or even some discord.

In my eleventh year of full time mediation practice, now there is much more improvisation in my work.

Professor Michael Wheeler of the Harvard Business School says it this way:

In both negotiation and jazz, this process of learning, adapting, and influencing takes place moment to moment in listening and responding. You reflect, affirm, rebut, reshape, and respond to whatever your counterparts put forth. And as in jazz, it’s impossible to anticipate every twist and turn. Like it or not, you have to improvise right from the start.  (Wheeler, M. (2013). The art of negotiation: How to improvise agreement in a chaotic world. New York: Simon & Schuster, p. 98.)

But it’s riskier too; there’s no clear path, unlike what we were taught in beginning mediation classes.

Professor Wheeler, affirms with this quote from the late Richard Holbrooke:

“Negotiation is like jazz. It is improvisation on a theme. You know where you want to go, but you don’t know how to get there. It’s not linear.” Ibid., p. 96.

And the harder cases to settle?  Now they seem to be settling in greater numbers, although not always, or they’re moving closer to settlement than ever before.

And the harder mediations themselves?  Well, they’re more exhausting, and sometimes scarier, yet they are all the more rewarding when fruitful.

As Jimmy Carter reportedly said: “[You’ve got to] Go out on a limb. That’s where the fruit is.”  See, http://thoughtcatalog.com/christine-stockton/2013/07/50-awesome-quotes-that-will-inspire-you-to-take-that-risk/

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

Making the Most of the Summer Slump

It’s no secret that business activity slumps in the summer months of June through August: school is out; families vacation.

In the mediation world, lawyers and litigants vacation as well (although usually not together).

As the pace of business slows down, which is expected, I too utilize my free time for family and travel and other things, which is excellent … and fun.

This year so far the plans include: Birmingham, Philadelphia, Kansas City, and Seattle.

Since I will be away from my desk sometimes over the summer, I’ve made these accommodations for others who are looking for my help in mediation (when they’re not on vacation):

My cell phone number, 818-515-9361, is now my business phone number, and people can reach me so long as I bring my phone with me (and remember to turn it on).

My calendar of available dates is on my website at http://karpmediation.com/calendaring.html which I update regularly.

Via e-mail people can provide me with the information I need for the mediation’s paperwork, and I can send it out via email, and the whole convening process can be seamless. (An information sheet for this purpose is available online on the above page of my website.  Also, here’s direct link to it: http://karpmediation.com/resources/infotoconvenemediation20150125.pdf .)

Moreover, I have made my website “mobile friendly,” as I recognize that others may be accessing my website from their smart phones while they too are away from their desks and computers this summer.

For myself, I’m also taking time, while local, to do these things, which are always good ideas:

I’m doing more networking.

If I find a continuing education program I like, I will sign up for it.

I’m still volunteering.  Recently, I did the “Walk 4 Hearing” for the benefit of the Hearing Loss Association of America.

And I’m writing, as here, when the mood strikes me.

Finally, on some Tuesdays, I’ll be enjoying a picnic dinner and an outdoor concert at the Hollywood Bowl with the love of my life.   Maybe I’ll see you there!

Enjoy your summer.

Keep busy with the fun stuff… and be productive as well.

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

My Dad and his Military Career

Some years ago my Dad passed away. But it’s his birthday today as well as Memorial Day. So it seems right to give a nod to his time in the US Army.

My Dad was a pacifist by nature so it’s hard to picture him in the Army, although we have many photos of him in his uniform during that era.

He ended up doing something with radars in Alaska during the Cold War, which led to his interest in electronics later in life.

Although a pacifist, he earned a Marksman’s medal of some sort because he learned to shoot in the Boy Scouts’ Explorer program and was on the rifle team in High School.

Thankfully, he never had to shoot a gun at anyone while in the Army. He might have killed somebody.

For some medical reason, he was not cleared for the draft until the mid 1950s, not until after he was married to my mother and I was already born.

Dad was smart enough not to go to Officers’ Candidate School although invited. He refused because he would have had to stay in the service longer, away from his family, which he did not want.

As an enlisted man, he received a Good Conduct Medal at some point but I don’t think he liked the Army much.

Nevertheless, after his time in the service, he loved to watch the Army-Navy Football game on TV with me.

And, for pretend, he let me have a toy musket and a blue Civil War uniform on which I could pin his medal during play.

And he took me to West Point on a field trip when I was a Cub Scout to see the Cadets’ cool uniforms.

And he taught me to respect the price of peace and even had me try to memorize the Gettysburg Address.

And he was reverent on Memorial Day for those who didn’t survive their time in the military.

My dad taught me to be a pacifist as well but also to be reverent on Memorial Day for those “who gave the last full measure of devotion” so that our “government of the people, by the people, for the people, shall not perish from the earth.”

So, here’s to my Dad, to his pacifism, to his role modeling, to his quiet patriotism, and to the respect for veterans he instilled in me which surfaces on days like this Memorial Day.

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

Al the Flying Ancestor

This is about Al the Flying Ancestor. (Sorry, I was thinking of Rocky the Flying Squirrel as I wrote that line.)

Al was my grandfather’s uncle. At least I think he was an uncle. (My wife, the family genealogist, could confirm but she’s not here right now.)

Once, when I was just a pisher (i.e., a young person), my grandfather took me to the San Diego Air and Space Museum to look for information about Al.

My grandfather was very proud of his uncle. Therefore, so was I, although I didn’t really know anything about him at the time.

I don’t think we found out anything about Al in that museum. My grandfather was greatly disappointed. So was I.

But then we had ice cream and everything was OK. I liked that part best.

Later I learned more about Al. Even later, at the Smithsonian National Air and Space Museum in Washington, D.C., I saw a small display about him.

Now that was exciting.

Then I looked him up online. See, http://www.jhsgw.org/exhibitions/online/arthurwelsh/index.html

Al was the first Jewish aviator in the United States!

That’s a pretty big deal I think, at least it is in our family.

My grandfather’s uncle was really named Laibel Wellcher. Like so many others, Laibel was a Russian Jewish immigrant who came with his parents and siblings to the US in the late 19th Century.

When he joined the US Navy in 1901, he Americanized his name to Arthur Welsh.  His friends called him Al. Thus, so do I.

After the Navy, Al learned flying from Orville Wright and attended and later taught flying at the Wright Flying School.

Maybe that’s why I like to fly.

However, in June 1912, while conducting a test flight for the War Department, Al’s plane crashed which killed him and one Lieutenant Hazelhurst also on board.

That wasn’t so good, but I still like to fly and fortunately aviation has improved.

Here’s one more cool fact:

Orville Wright and his sister attended Al’s funeral in Washington, D.C. and Orville Wright was a pallbearer. (I learned this – and some of the other interesting facts in this piece – from the website given above, i.e., at http://www.jhsgw.org/exhibitions/online/arthurwelsh/index.html .)

If you’re interested, you can learn a lot more about Uncle Al from the that website too, and there are some terrific images on the site as well.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California who sometimes likes to share family history and in any event likes to write. His professional website is at http://karpmediation.com .

Hear Today

I did not hear America singing.
Neither did I hear the mermaids
Singing each to each.
They wouldn’t have sung to me anyway.
Shall I hear more, or shall I speak at this?
I had a button made to wear which warns of hearing loss.
The button is too small to be read.
Still, I wear my hearing aids
Openly and proudly.
Maybe I will wear the bottoms of my trousers rolled too one day.
For now, I celebrate myself and sing myself.
And I listen closely
For all that is said and unsaid.

***

David I. Karp is a full time mediator of real estate and business disputes  in Southern California who listens closely for all that is said and unsaid.  His business website is at http://karpmediation.com .  Sometimes he pretends to be a poet as well.

A Peaceful Moment

I found a peaceful moment today,
Outside on the patio at our home.
I sat and emptied the day’s busy thoughts from my mind.
I looked up and saw the wonder of my surroundings.
The setting sun bathed the large tree nearby in golden light.
The branches of another waved gently in the breeze.
Some birds flew by and then an airplane,
But quietly and at a distance.
The soft air surrounded me.
And I was at peace after a full workday.
I am grateful for the magnificence of the moment
And this opportunity to share the same.

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