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Questions Intended to Get People Thinking

I like to ask questions in mediation that get people thinking about resolution or at least reveal something about their intentions. Usually I ask them right up front; sometimes I will refer back to them later on.

Here are a few of the questions that I sometimes ask, along with some commentary about them.

“On a scale of 1 to 10, how productive a mediation do you want today?”

Almost universally, people say they want the mediation to be productive and usually give this question an 8, 9 or 10 rating. In part, however, this is a trick question because it is usually followed up with this one:

“On a scale of 1 to 10, how important is it to prove that you are ‘right’ and the other side is ‘wrong?”

To me, it really doesn’t matter in mediation who is right and who is wrong ultimately. Instead, what matters is how we can address the underlying needs and interests of the disputants to find common ground. Consequently, in my mind, the lower the rating on this question, the more likely it is that the mediation will be productive. The higher the number, the less likely it is that the mediation will result in resolution, UNLESS I can use this question as a teaching opportunity to suggest that these first two questions are inversely related, and that the higher the rating for the first question and the lower the rating for the second underscores what is important to resolution and helps shift the focus to problem solving instead of who is right and who is wrong.

As an aside, in one recent pre-litigation mediation, wherein both lawyers (and consequently their clients) believed that they were right and the other side was wrong in the legal interpretation of a contract provision, it really was important to them to prove this, as a result of which I concluded with them that although they were required by contract to mediate before litigating, the litigation probably was the better dispute resolution forum … to which both sides responded in private caucus that they were only there for the mediation because they had to be (or they would lose their right to prevailing party attorney fees later on).

On the other hand, the question does help to teach the real focus of the mediation, along with this one:

“On a scale of 1 to 10, how interested are you in understanding the perceptions, motivations and needs of the other side?”

I believe that this question helps people immensely to understand what is really important in the discussions that will ensue during the course of the mediation and helps direct the negotiation. People usually approach resolution more readily when the potential agreement satisfies their needs and interests and therefore both sides need to understand the needs and interests of the other.

And then there’s this one:

“How responsible do you feel for finding solutions that will also work for the other side?”

It is important to me to emphasize that “it takes two to tango” to get to settlement, and this question allows the disputants to reflect that they will have to compromise in some way to get to peace.

I should add that these questions, and others, either have been borrowed from or inspired by Kenneth Cloke who wrote, among other things, Mediating Dangerously: The Frontiers of Conflict Resolution (Jossey-Bass, 2001), a fixture in my library on mediation and negotiation.

Then there are these questions:

“How much will it cost to prove that you are right and the other side is wrong?”

At the start of every mediation, each person believes that he/she is right. It is a given. This question, therefore, asks for a cost analysis that should be undertaken when deciding whether or when to settle the dispute, if at all. For most people and small businesses, the cost of the fight may outweigh the benefit and it is important to put that issue into the mix when deciding what to do. It is possible that they cannot afford the fight.

Another aside: In a recent mediation between two national companies, this question was irrelevant to them and they continued in their “rights based” pursuit of victory without settling because they could afford the fight.

For most, however, this is a really important question along with the following question which adds risk analysis to the cost analysis of the prior one:

“What if you are right and the judge or jury disagrees with you? (In other words, what if you are wrong?)”

Then, finally, I end with: “If the fight is costly and risky, what else can you do?”

To which the answer is to engage fully in the mediation and work towards settling the dispute.

Questions are a wonderful tool for teaching, for learning, for revealing what is important, for reflecting and for helping people to resolve their disputes.

What do you think?

***
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 .

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2017 Donations in Your Honor In Lieu of Commercial Holiday Cards

Always in lieu of spending the money on commercial holiday greeting cards that people throw away, I like to make donations at this time of year, usually shortly before Thanksgiving for these purposes:

• To honor friends, family, and business colleagues, to express my gratitude for our relationships with one another, and also

• To fulfill my commitment to Social Action, that is, to help repair the world (Tikkun Olam).

With these goals in mind, this year’s donations have been made:

1. To ADL (Anti-Defamation League) to support its efforts to “oppose defamation, confront extremism and promote a positive agenda of inclusion, respect and the celebration of democratic ideals.” More about this at https://www.adl.org/ways-to-give .

2. To the JFS { SOVA Thanksgiving Virtual Food Drive – JFS { SOVA is the Jewish Family Services of Los Angeles’ Community Food and Resource Program – to help provide turkey, stuffing, gravy, and abundant quantities of fresh produce to families in need. More about this at: https://www.jfsla.org/sovathanksgiving?srctid=1&erid=1179777&trid=a1d07ae7-cbf1-48cd-a309-09fec7d3de60

As I have written before (see, https://karpmediation.wordpress.com/2015/11/22/donations-at-thanksgiving-time/ ), it is not a choice for me as to whether or not to give at this time; it is only a choice of where to give and how much.

I encourage you, too, to take responsibility for such social action and to join me in making your charitable donation(s) at this time [so far as you can do so] – to whomever and in whatever amount – and to join me in repairing the world.

As the good book says: “Whoever saves a life, it is considered as if he saved an entire world,” or something like that.

The best of the holiday season to each and all of us.

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 .

Announcement — Martindale-Hubbell® AV Preeminent™ Rating for 2018

As announced on the News page of his website at https://www.karpmediation.com/news/ , “Mediator David I. Karp has been notified that, as in prior years, he has earned for 2018 the Martindale-Hubbell® AV Preeminent™ Rating, the highest possible rating for legal ability and ethical standards.”

For those interested in knowing more about this rating, here is a link to an explanatory video: https://www.youtube.com/watch?v=ekRoRxTp0NQ

***

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 .

Rosh Hashanah Haiku

You might enjoy these
As you sit down to dinner
For the holiday.

We light the candles.
G-d commanded we do this
To start the New Year.

We have a blessing
For wine, the fruit of the vine.
We say L’Chaim.

Next we say Motzi.
This prayer thanks G-d for bread.
It’s really good stuff.

For a sweet New Year,
We put honey on apples,
A messy custom.

How good it can be
For us to be together
To eat this big meal.

Time to reflect soon,
On what has been and will be,
For a good New Year.

L’shanah tovah.
May you and yours be inscribed
For a good New Year.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California and sometimes enjoys the Haiku form of poetry. His professional website is at http://karpmediation.com .

It Is Not So Convenient to Be Jewish; it Requires Commitment.

It’s just not so easy to be Jewish.

Dietary laws might conflict with menus at restaurants. Holiday observances might conflict with the secular calendar and other responsibilities. Even certain values of justice, fairness and diversity might and often do conflict with the politics of the day.

Nevertheless, we must remain committed to our values, our traditions, our observances … to the extent we can or are willing to do so.

Some will not work, drive or pay money on the Sabbath and other holidays or observances. That’s OK.

Some, perhaps more accommodating to their secular lives, might drive to Shabbat services at their synagogue but keep Kosher … or not.

Some, in the Reform tradition, will keep steadfast the values and ethics of Judaism, but let go of some, even most, of the ritualism of the faith.

All of us must draw the line at some point however.

Even if I do not have a membership any longer in a synagogue, I will still respect the upcoming High Holy Days of Rosh Hashanah and Yom Kippur.

I will not defer them or postpone their observance because they might be mid-week, even if they conflict with other things I or others might like or need to do.

That is not me.

For each person, we define the level of our observance, but at bottom, it is important to have, respect and uphold a Jewish identity.  I will not give that up.

That’s what I think, and that’s the way I will live my life, even if it is inconvenient sometimes.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California who values his Jewish identity even in the face of external challenges.  His website is at http://karpmediation.com .

An Opinion Piece on Doing What is Right and Good

In this week’s Torah portion, called Va’etchanan (Deuteronomy 3:23–7:11) we are reminded, among many other commandments, to do what is right and good (Deut. 6:18).

I know that this is how is live my life, whether, as in the past week, I am taking a shut-in elderly relative out for dinner, or having a recently widowed friend to our home for a meal, or taking care of an infant grandchild, or giving a break on mediation fees for a dispute over a very small sum of money, or whatever.

But I am not convinced that, in the larger sense, our society is doing what is right and good, and I am greatly disturbed by this.

I read about politicians who are blatantly untruthful or apparently think they are above the law.

I hear of foul language being spoken by people in high posts.

I learn that immigrants to our country may be excluded because they do not speak English or do not have sufficient education or technical expertise.

I follow the trending news that those most vulnerable in our society might lose healthcare coverage or be denied the safety net of Medicaid.

I fear that the ACA is being sabotaged for political gain.

I am repulsed by attempts to bar refugees and others from entering our country based upon their religious beliefs.

I am angry that immigrant parents are being separated from their families and are being deported without good cause.

I am upset that LGBTQ individuals may not be treated equally in the military or elsewhere.

I am outraged that women’s healthcare is at risk and that Planned Parenthood is a target.

All told, I am disgusted by so much in the news these days.

It is not right and it is not good, and I think that we, as a society, are better than that.

We have the Constitution: we have Due Process and Equal Protection.

We are a country of laws.

I thought we were a country of morals.

Rashi, a medieval French rabbi and commentator, says that doing what is right and good is a moral obligation to go beyond what we are legally required to do.

There are many reminders in my life of what is right and good.

The Torah portion, Va’etchanan, for instance, recalls the Ten Commandments among other things.

The Scout law reminds us to be trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean and reverent, no matter what our President makes of it.

Freemasonry teaches us to respect freedom and to value kindness, tolerance, and our differences; to take responsibility for the well-being of our brothers, our families, and the community as a whole; and to stay true to our personal code of conduct and ethics – honor, integrity, personal responsibility, and the continuous pursuit of knowledge.

All of this is what is right and what is good and this is how I live my life.

Why is it not so for others in our society?

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who sometimes voices his opinion. He is also a Freemason and a retired Scouter. His website is at http://karpmediation.com .

For Life, For Opportunity

In the pool this morning for exercise, I allowed some random thoughts to swim together, as it were, while I was doing my laps. As we all know, sometimes one thought leads to another and what appears to be disconnected actually makes some sense when put together.

This past week, my wife and I and our son attended the funeral and burial of a contemporary of mine. We have been associated with the family for a very long time. The connections ranged from friendships in common social circles to participation together in Scouting over the years.

Afterwards, as is tradition, we visited the family’s home for the so-called meal of condolence (Seudat Havra’ah) and attended the religious service there, which was a part of the afternoon/evening (Shiva Minyan). I returned to the home the following evening as well for the evening prayers and will do so again for as long as the family wishes.

So, naturally, due to the intensity of these events, I have been ruminating about all of this for several days.

Maybe it was the conjunction of Scouting and prayer that led me, randomly while swimming this morning, to think about a particular Scouting prayer that is often said at Scouting events before meals.

It is called The Philmont Grace and it goes like this:

For food, for raiment
For life, for opportunity
For friendship and fellowship
We thank thee, O Lord

I have always liked this prayer. It is simple, succinct, yet all-encompassing. Even so, the part of the prayer that came to me while I was in the pool swimming was the second line: “For life, for opportunity.”

Here’s why:

For life — Our friend who died had a good life, although he was challenged with health issues. From knowing him and from listening to the eulogies, I know that he was a good husband and father, and I am certain he was very proud of his roles as such.  He was a mensch in so many ways and so provided his family during his lifetime with food, raiment, life, opportunity, friendship and fellowship, and much love, all of which made his life important, significant, and memorable.  As we say in our tradition, “may his name be for a blessing.”

For opportunity — For myself, personally, I have come away from these events with my own sense of gratitude for the experience, in that I had the opportunity both to honor this friend’s memory and to lend emotional support to his family during their time of intense grief.

In writing this short piece, I am also reminded of this quote that I have on my business website:

“We make a living by what we get, we make a life by what we give.” – Sir Winston Churchill

For life, for opportunity — This is what I have been thinking about, and this is how I live my life, ever thankful for the opportunities that come to me to give of myself when I can.

***

David I. Karp is a full time independent mediator of real estate and business disputes who has become much more sentimental and reflective as time goes by. His business website is at http://karpmediation.com .

 

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