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Social Justice for Passover During a Pandemic


Passover (“Pesach”), the eight day observance recalling the Exodus from Egypt, is nearly upon us. It starts Saturday night, March 27, 2021.

Passover recalls the story of the Exodus and celebrates freedom from oppression.

Coincidentally, an exodus of migrants is taking place from the south at the southerly border of our country and I have been feeling heartbroken and helpless for those unaccompanied children, among others, seeking refuge here. And during a pandemic no less.

In an opinion piece published in the Dallas Morning News, July 13, 2018, entitled “As Jews, we must welcome immigrants as strangers in a strange land,” the author, Rabbi Andrew M. Paley, states:

“In the Torah we are commanded 36 times to remember that we were strangers in a strange land and that we are obligated, ‘When strangers sojourn with you in your land, you shall not do them wrong. The strangers who sojourn with you shall be to you as the natives among you, and you shall love them as yourself; for you were strangers in the land of Egypt.’”

( )

And so, feeling helpless, I have wondered how I could help from home as we wait out the pandemic.

Luckily, I received an email today from pointing me to an article entitled “How You Can Support Unaccompanied Migrant Children” at .

Inasmuch as I believe that Social Justice is as much a part of Passover specifically as it is a part of Reform Judaism generally, I read the article and found a link to the “Young Center for Immigrant Children’s Rights” at . (It is named for one of the first children they served, Young Zheng Sullivan.)

There I found a way to help, by making a donation, which I did, for their work in support of the unaccompanied and separated children seeking refuge here.

Now I feel as if I have fulfilled, at least for the moment, my obligation under Jewish Law for Social Justice, particularly for Pesach.

And, in the face of this pandemic, I also do not feel so helpless this Passover, to do what I believe is right (others may disagree).


David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who sometimes writes about subjects other than mediation. His website is at

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

A Mediator Is Not a Substitute for One’s Own Attorney


People search the internet for mediators when they do not have a mediator in mind or a referral. They do not know whom to call so they use a search engine.

This is not my primary source of business; usually I am retained by an attorney with whom I have previously worked or by someone who has been given my name.  My website is a reference point for someone who knows my name and wants a little more background.

But I do receive calls from unrepresented individuals who find me on the internet.  In my experience, however, this is because the people who are performing the search mostly are not themselves attorneys; and, in large part, they are looking for a substitute in lieu of an attorney.

I realize that these are generalizations. But when I get calls from people who found me on the internet, they are usually looking to cut out the cost of hiring an attorney. They misunderstand the mediator’s role. They are usually looking for someone to decide for them who is right and who is wrong, to give advice as to the best options for a solution to the dispute they are facing, to make the other side see it their way, to draft a settlement agreement for them, effectively to take the place of an attorney so they don’t have to hire one.

I am required to tell them that, although I am an attorney, I am not THEIR attorney. I am not representing them. I cannot advocate for them. I cannot give them legal advice. I can not tell them if they are getting a good deal or a bad deal. I do not prepare settlement agreements. All of these are functions of an attorney who represents them. I am not a substitute for their own attorney. I recommend that these unrepresented individuals seek the advice and counsel of their own attorney and then come to mediation. Or join in mediation without an attorney, knowing all of the foregoing.

Rule 2.4(b) of the California Rules of Professional Conduct requires this. It says:

“A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows[ ] or reasonably should know[ ] that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.”

So, they ask what I do as a mediator. I usually say something like this:

“I am a Neutral. I am not a judge. I do not decide who is right and who is wrong. I don’t represent either side of the dispute as an attorney, but I will manage the conversation between the two (or more) sides, so that, with sufficient information, each side can make its own decisions as to whether or not to settle and on what terms. I believe in self-determination and informed-decision-making by the parties themselves, usually with the guidance of their own counsel with whom I also interact as a go-between. If a settlement is reached, the attorney will draft the settlement agreement, not me. I have no power to force anyone’s agreement. It’s never up to me.”

Sometimes, with my explanation, the person who found me on the internet will go further to ask more about the process and how to engage me as their mediator. Usually I say that, when you hire counsel, usually the retained attorney finds and hires the mediator, but you are welcome to keep my name in mind and to suggest it at that time. Or you can proceed without an attorney with the above understanding.

Sometimes the latter happens. Mostly however, the person who found me on the internet thanks me for my time and ends the telephone call. That person is still looking to have a mediator who will substitute for their counsel.

As I see it, I am a mediator who augments an attorney’s participation. I am not a substitute for a person’s own lawyer. It is okay with me if that is not suitable for the caller.


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

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Code of Civil Procedure §664.6 Has Been Amended


For my colleagues and friends – The following updated statutory language is provided for your information:


(a) If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.

(b) For purposes of this section, a writing is signed by a party if it is signed by any of the following:

(1) The party.

(2) An attorney who represents the party.

(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer’s behalf.

(c) Paragraphs (2) and (3) of subdivision (b) do not apply in a civil harassment action, an action brought pursuant to the Family Code, an action brought pursuant to the Probate Code, or a matter that is being adjudicated in a juvenile court or a dependency court.

(d) In addition to any available civil remedies, an attorney who signs a writing on behalf of a party pursuant to subdivision (b) without the party’s express authorization shall, absent good cause, be subject to professional discipline.

(Amended by Stats. 2020, Ch. 290, Sec. 1. (AB 2723) Effective January 1, 2021.)


Kind regards,

David I. Karp

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

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Prevention and/or Preparedness


The refrigerator malfunctioned on Thursday. It was too big and bulky for me to move to unplug. So it remained “on.” We called the appliance guy who agreed to come on Friday, the next day.

That Thursday night I didn’t sleep well. I worried all night that the malfunction would cause a fire in the kitchen below us.

That’s when I realized that, upstairs where the bedrooms are, there really isn’t a good escape route if a fire breaks out downstairs.

And that’s when I finally realized that we needed an escape ladder that we could hang out the window if there were a fire or other emergency.

The next day the refrigerator was fixed and I have since ordered and received the escape ladder. It sits in a box under our bedroom window.

Fires are particularly scary for me (and for nearly everyone), and also really dangerous.

I obtained the escape ladder to “Be Prepared” . . . although better late than never.

I also have this theory that, if we are prepared for the worst, we can magically prevent the worst from happening.

So, obtaining the escape ladder was a preventative measure, too.

Hopefully we will never have to use it.

As Ben Franklin reportedly wrote, “An ounce of prevention is worth a pound of cure.”

That night – when I worried rather than slept – I was also reminded that people involved in disputes spend sleepless nights as well. They worry about the litigation in which they are involved, its cost, its risk, its effect on personal, family, and business life and so much more.

So, in mediation, I not only talk about ending the worry and the sleepless nights that result, but I also talk to people about prevention by asking “How will you protect yourself from something potentially worse happening?” or words to that effect.

When I add the following phrase, reportedly from Voltaire, sometimes I can get people to think about settling rather than litigating, to avoid the risks and the financial, emotional, and opportunity costs of not settling.

Voltaire reportedly said: “I was only ruined but twice: once when I lost a lawsuit, and once when I won one.” Rosten, Leo. Leo Rosten’s Carnival of Wit. New York: A Dutton Book, 1994. Print. p 273.

If settlement results from these efforts, great! The worst may have been avoided.

If not, maybe they are better prepared – having considered risk and cost – the next time the discussion of settlement arises. And maybe then they can and will avoid the conflagration or other destructive outcome they were facing.

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

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Knowing Whether and When to Say Yes


Now in my 16th year of full time mediation practice, I have witnessed many negotiations. Many have resulted in settlements. Some have not.

Oftentimes, it becomes a question of whether and when to say yes.

Speaking of questions, here are some that are worth thinking about as the negotiation progresses:

Under the circumstances, is the other side desperate to settle at whatever cost? Are you? Do they have a palatable alternative to settling at this time? Do you? Are they so wrapped up in the dispute itself that they are not able to compromise further? Are you? Have they (or have you) misinterpreted the strengths and weaknesses of the case?

Of course, negotiation is fraught with uncertainty. And it’s difficult to interpret often ambiguous messages from the other side.

Some messages are not so ambiguous however; they just have to be interpreted with some intuition.

There are signals that suggest that it may be time to start thinking about when and whether to say yes.

In the exchange of offers, you might be seeing progressively smaller intervals or changes. That can be a signal that the offeror is aiming toward a certain ending point or even nearing the end.

Or maybe there’s a greater length of time between offers. That’s another signal.

These are fairly elementary and may be bluffs nevertheless, so it’s still a guess.

Sometimes there’s more clarity for one to consider:

“This is my last and final offer.” Or,

“Here’s my offer; I have one more move to make.” Or,

The mediator might say something privately like: “You might not have the perspective I have gained from being in the other room. It’s pretty tense there and they are expressing exasperation; they may even be getting ready to walk out. You might consider how you should respond if you really want to make this deal.”


“Is there a better time than now to close this deal?”

At bottom, it’s still really educated guesswork on whether and when to say yes.

In The Art of Negotiation: How to Improvise Agreement in a Chaotic World by Harvard Business School Professor Michael Wheeler, the author suggests a few nuggets of advice (p. 200) [Wheeler’s suggestions are in bold]:

Take care not to push too far. He says, “The only way to know how far you can go without exploding the deal is by going a little farther than that.” But … “When someone hands you a tasty piece of cake, with rich frosting to boot, think twice about asking for sprinkles on top.” Id. at pp. 185-186

Pick the right way to say yes. Wheeler has several suggestions about this, it’s worthwhile reading. In my experience, I have communicated “the yes” a few different ways. “You have settled your case, congratulations.” Or “they appreciated that you went that extra step and said yes.” Or, “We have a conditional yes. They say yes to the number if that sum can be paid within X days.” My take: be congenial and appreciative but don’t grovel.

When others say no, probe for the underlying reason. Self-evident.

Anticipate last minute blow ups. One suggestion by Wheeler: hold back something in reserve that can be thrown in to close the deal. My suggestion, depending on the circumstances: get the deal documented and signed then and there before people can back off. Or, if the negotiation has been long and drawn out and people are truly exhausted, maybe close the deal after people have had time to refresh themselves.

To conclude a negotiation smoothly, begin that same way. My take: work collaboratively throughout the negotiation, understand as best you can the other sides motives and constraints as well as your own, and intuit what you can from the cues communicated in the negotiation.

Finally, take care not to overdo it.

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

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Look at My Virtual Background to See the Forest Not the Trees


Now that I am a Zoom maven, I have selected a few virtual backgrounds to share.

From several pictures, I sometimes share an image of sailboats moored in a harbor so I can say, “it seems to me we are not going anywhere with this discussion” or words to that effect.

I also have a beautiful picture of a grove of trees that I sometimes share so I can ask if we are focused on the trees instead of the forest, in reference to the idiom “cannot see the forest for the trees.”

“Can’t see the forest for the trees” is “[a]n expression used of someone who is too involved in the details of a problem to look at the situation as a whole: ‘The congressman became so involved in the wording of his bill that he couldn’t see the forest for the trees; he did not realize that the bill could never pass.’”

Some other examples of this idiom, not seeing the forest for the trees, follow.

In a mediation, the defense attorney might be focusing on very detailed technical defenses instead of the undisputed facts underlying the plaintiff’s claims that arguably create enormous potential exposure, high risk, and tremendous expense for the client if the matter does not settle.

Or, the Plaintiff’s attorney might be so wrapped up in arguing that her Buyer-client was so defrauded by the Seller’s alleged nondisclosure that she does not focus on the fact that the market value of the transferred real property was unaffected by the alleged fraud and that there are arguably no recoverable damages.

Or, the attorneys might be so overly focused on debating the law when the underlying needs and interests cry out for settlement to guard against anything worse happening at trial. I have written about this before. See:

If lawyers or their clients get caught up in an endless loop, arguing who is right and who is wrong, any progress toward settlement stalls. There is no movement. It’s as if those sailboats moored in the harbor are not going anywhere.

To refocus on the fact that we are in mediation to attempt to settle the case, not to try it as if in court, mediators like me ask the participants, “What is the ultimate goal here?”

Or we ask to change the course toward making a settlement proposal.

Or we have everyone take a break to reassess their respective negotiation strategies.

Or we remind them that, if they focus on their underlying needs, interests and priorities, and those of the other side, we might still settle without either side convincing the other of the correctness of their own legal positions.

In these ways, among others, the lawyers and their clients may yet see the forest for the trees.


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

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

What Should Senate Democrats Do in Light of the Power Imbalance, an Opinion Piece


Unless there is a defection in the ranks of Republican Senators, the current president’s nominee to the Supreme Court will most likely take a seat on the Court soon, despite all of the arguments, drama and passionate intensity to the contrary.

So, what should Democratic Senators do in the upcoming skirmish toward filling RBG’s seat on the bench?

First, I think that the Democrats in the Senate must be realistic. There is a power imbalance here. They are simply outnumbered and the Republican majority will prevail absent a dramatic change of circumstances. They will likely have to concede more than they would like.

Second, I think the Democratic Senators must look for value to themselves in the long run. Their position is weak at present but maybe not so much in the future.

But what value can they create and how? Should they “fight fire with fire?” If they vigorously oppose the confirmation, are they stronger in the minds of their constituents? Or are they “shooting themselves in the foot” if they do so?

If they don’t put up a huge nasty fight, but take a considered dispassionate approach and evaluate and understand the motivations of their Republican colleagues, will they be seen as weak?

Or will they be seen as judicious?

I favor the judicious view. It is a virtual certainty that the nomination will be considered by the Senate and that the Senate will confirm the nominee who will ascend to the Court.

In my view, the Democratic Senators should be well prepared, considerate of the other side and the nominee, diligent, respectful and restrained in their inquiry, and not obnoxious, and understand that, in the words of an old US Marine I once represented when still in law practice, “this may not be the hill to die for.”

It seems to me that there is more to be gained than lost by “going high” in the words of Michelle Obama than “going low.” There will be future negotiations in the Senate in which a concession here may promote reciprocity in the future when desperately needed.

Ultimately, I do not believe that concessions show weakness, when realistically viewed in the light of existing and future relationships and the circumstances of the times. See also,

This is so despite the fact that I am appalled by the maneuvering that has gone on to date in leading the Senate to where it is now, that is, with the complete obstruction of Merrick Garland’s nomination then and the recent reversal to accommodate the current nominee.

Of course there will be lasting consequences for a generation or more with the Court potentially tilting to more conservative views, but what else can be done if the Republicans, who have the power, push this?

On the other hand, if there is any truth to the proverb that “you can catch more flies with honey than with vinegar,” the upcoming confirmation process should not be raucous event but dignified as a model of democracy in action. The reputation of the Senate as the world’s greatest deliberative body is at stake, now as before.

Moreover, I have to believe – or I may lose all sanity – that the current nominee if confirmed will approach each case dispassionately, apolitically and areligiously, and instead focus her attention on the merits, on judicial precedent, and on the need for stability in our legal system.


David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who sometimes writes about subjects other than mediation. His website is at

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

A Presentation on the Constitution for the Lodge


Every once in awhile, I do something for which I’d really like to give myself a pat on the back.

That’s what happened last night, and I’m still stretching over my shoulder, figuratively speaking, for the congratulatory tap.

Last night, I gave a presentation about the U.S. Constitution, including some individual rights in the Amendments and certain illustrative Supreme Court cases interpreting those rights.

I spent many hours researching, preparing and putting together a PowerPoint presentation for the event that was primarily for non-lawyers. (Only one other lawyer participated.)

Below I will tell you why I did this. For now, however, I will simply say that I had a wonderful time both in the preparation and the presentation.

For me, it was like a refresher course in Constitutional Law. After all, I had that course in law school 42 years ago.

And it was a delight sharing with others what I learned back then and relearned for the presentation.

Unlike my experience in law school, in which Con Law was drudgery for the most part, this was a far better experience because I have spent almost 41 years as a lawyer and my interest in the law has only deepened in that time.

Anyway, here’s why I made the presentation:

I am a Freemason and belong to a Lodge of Masons that I like very much. Early this year the Master of the Lodge (like the President of the club) asked me if I would make a presentation about the U.S. Constitution in September. September is designated annually as Constitutional Observance Month by the Grand Master of Masons in California, because of the integral association of Masons with the formation of our republic so long ago.

I agreed and undertook the challenge to prepare something of interest for my Lodge Brothers. They are a diverse group of men with whom I have formed deep and lasting friendships notwithstanding our differences in culture, religion, age, educational and work experience, and so forth.

The presentation was last night via Zoom and was enjoyed by all, including me as I have written above.

In a time of social isolation because of the Coronavirus pandemic, an opportunity such as this one was not only welcome but cherished for the intellectual stimulation, the engaging discussion, and the warm reception for the subject matter of the presentation.

As one of my Lodge Brothers remarked, “it was great.”

Enjoyable too, as you can tell.


David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who sometimes writes about subjects other than mediation. His website is at

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

High/Low Agreements and Voluntary Expedited Jury Trials


I had the opportunity the other day to be creative by recommending a high/low agreement to be used if the parties in that day’s mediation could not find sufficient common ground to make a settlement.

We were in a traditional mediation that was ending without a settlement that day. The two sides were still very far apart in their offers and counteroffers after many hours and they were not really inclined to compromise any further, which, of course, is their prerogative. (Parties do not have to settle at mediation if they choose not to do so. Such self-determination is a central part of the mediation process. See, e.g., Rule 3.853 of the California Rules of Court at .)

Ever a proponent of dispute resolution by voluntary means if possible, I recalled that trial is the ultimate dispute resolution process and that the procedures for voluntary expedited jury trials (Code Civ. Proc. § 630.01 et seq.) bring a new twist or opportunity to make trials simpler, faster and less expensive.  For a fuller explanation of the voluntary expedited jury trial process (“VEJT Process”), see .

I frankly do not know if anyone actually utilizes the VEJT Process although it has been on the books since 2011. But the high/low agreement is a flexible and useful part of it.

The high/low agreement can also be used in arbitration, separately or even in conjunction with mediation.

The high/low agreement has a specific benefit in that it protects both sides from the worst outcome, the all or nothing-at-all outcome, that parties face going to trial or arbitration in a significant money dispute.

Here is the definition of a high/low agreement from the VEJT process:

“‘High/low agreement’ means a written agreement entered into by the parties 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. Neither the existence of, nor the amounts contained in, any high/low agreements may be disclosed to the jury.” Code Civ. Proc. § 630.01(b).

In a mediation, or even in other dispute resolution discussions, parties try to find a settlement number that both sides can agree upon. But they don’t always agree. The plaintiff may go to its lowest number, its “last and final” and the defendant may go to its highest number, its “last and final.” And the numbers may be far apart sometimes.

When that happens, those numbers might form the basis of the high/low agreement, for use in the VEJT process, or even in an arbitration.

Again, such an agreement may avoid the worst outcome for either side: There is a ceiling that limits the risk for the defendant if the defendant “loses” and there is a guaranteed recovery for the plaintiff even if the plaintiff “loses.”

That might represent the best outcome the parties can achieve from their negotiations if they haven’t otherwise settled their dispute and if they need a determination from the court or an arbitrator.

Incidentally, the VEJT process also allows for further negotiated agreements to simplify the trial, and these can be negotiated as well in mediation or in settlement discussions between the two sides. See Rule 3.1547 of the California Rules of Court at

I do not know if the parties in the recent mediation discussed at the outset will utilize the high/low agreement idea; “the jury is still out” so to speak.

But it is a valuable tool in the toolbox of dispute resolution professionals nevertheless.

And it is worth keeping  in mind when the parties become inflexible.


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

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.



Occasionally, as I did today, I look to a weekly Torah portion for inspiration about what to write. This sometimes triggers the recollection of something in my mediation practice that is worth discussing. Today’s post is the result of just such an exercise and “respect” is the word that came to mind from this confluence of thought.

The Torah portion, Va’etchanan (Deuteronomy 3:23–7:11), which I read this morning, repeats the so-called Decalogue, the Ten Commandments, which calls for respect in many ways: for G-d and the Sabbath, for truth, for parents, for life, for monogamous family relations, for others’ property, for satisfaction with one’s own lot in life, etc. I will leave it to rabbinic scholars to discuss the fullest meaning and interpretation of the Decalogue.

Yet, there is a custom about the reading of the Ten Commandments that is worth noting and sprang to mind for today’s purposes:

The congregation rises in respect when the Ten Commandments are read from the Torah.

In in-person mediations (which took place before mid-March of this year), I would try always to rise to greet a person entering the conference room. Today, with Zoom mediations that is not practicable, but I do try to give respect by saying that I will listen to all of the parties, empathize with them, help them to understand their predicaments and possible solutions, and respect their decisions (whether or not they settle).

Here, however, is the recent incident that came to mind today as I was thinking about “respect” in mediation practice:

In a recent conversation with a disputant dithering on whether or not to participate in a mediation, at all, as suggested by her opponent, I helped her to make her own decision by sharing with her the text of Rule 3.853 of the California Rules of Court, which provides:

A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties. For this purpose a mediator must:

(1) Inform the parties, at or before the outset of the first mediation session, that any resolution of the dispute in mediation requires a voluntary agreement of the parties;

(2) Respect the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time; and

(3) Refrain from coercing any party to make a decision or to continue to participate in the mediation

Thus, I gave this individual the respect of sharing our ethical mandate as well as letting her know that her participation is voluntary, as is any decision about whether or not to settle.

And the good news is, that after thoughtful consideration, and knowing some of the parameters of the mediation process, she consented to participate.

She may or may not agree to settle, or on what terms, but I will respect that decision too.

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

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

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