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Making Concessions is not Losing.

I had a conversation today with Mark Tseselsky, an insightful family law attorney who understands the psychology of his practice. Although framed in the family law context, different from my own real estate mediation practice, his observations were “spot-on” relative to mediation generally.

For his clients, angry marital couples already embroiled in longstanding arguments over this or that, where winning is everything, the thought of making concessions or coming to a settlement in a mediation, is seen as losing and is therefore intolerable …

At least, until the client has had a contested issue come up and/or begins to understand that he or she may not get everything that he or she wants in court …

Or until the lawyers bills start coming in…

Or both.

That’s when the idea of mediation or settlement comes to mind.

In other words, when litigants begin to understand the risks and costs facing them, that’s when mediation may become more palatable.

In ANY mediation, compromise is essential; it is not “losing.” Compromise is the way to mitigate potential risks and costs. It is the essence of a negotiated settlement.

To mitigate this sense of losing, however, compromise must be couched in terms of preserving dignity. I have written about this before. See, https://karpmediation.wordpress.com/2013/10/26/resolving-disputes-while-preserving-dignity/

There I wrote, among other things:

“On the most simplistic level, when both sides compromise or give in to the other, each has recognized the possibility that the other might be right and has honored the other by acknowledging that there are two sides to every story.”

Putting compromise in this context is where the mediator and competent counsel can help, and by making the connection between compromise and giving respect, the parties may be better able to come to, and tolerate, a negotiated outcome.
***

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 .

Unrealistic Expectations

Unrealistic expectations can be a real stumbling block to the successful resolution of a disputed legal matter.

I have seen and written about this issue before.

In one post, I observed that sometimes people are not open to listening and learning about other side’s view of the case and the attendant risks. See, https://karpmediation.wordpress.com/2014/09/16/some-people-can-only-listen-to-themselves/

In that post, I quoted something attributed to Frank Zappa which goes like this:

“The mind is like a parachute; it only works if it is open.”

In another post, I suggested that the (over)confidence of counsel may undermine success in resolution. https://karpmediation.wordpress.com/2013/05/05/when-overconfidence-undermines-success-in-mediation/

There I suggested that there can be significant risks to success if the litigant’s attorney has assessed the case one way and the mediator disagrees even if tactfully.

Often, I refer to a very useful article I found once and bring to every mediation. It is called Cognitive Barriers To Success In Mediation: Irrational Attachments To Positions And Other Errors Of Perception That Impact Settlement Decisions, available at http://www.mediate.com//articles/PR_CognitiveBarriers.cfm

There, the authors point out the underlying psychological issue in this way:

Cognitive Dissonance. This bias refers to the fact that it is psychologically uncomfortable for most people to consider data that contradicts their viewpoint. Disputants and their attorneys tend to resolve conflicting information by justifying their own conduct, blaming others, and denying, downplaying, or ignoring the existence of conflicting data.

Yet sometimes even showing a litigant that there is a reason why she is stuck in her own position does not get her to adapt from her unrealistic expectations, make concessions, and end the dispute with a settlement.

Ultimately, it is not for me as mediator to disagree with that personal decision. Neither can I tell her I think she is making a mistake even if I have that belief.

As a mediator I must respect the litigant’s self-determination as to the outcome of the mediation, so long as I have given her the informed opportunity to consider the alternatives. See, https://karpmediation.wordpress.com/2016/01/24/defining-success-in-mediation-an-ethical-response/

That is my role.

I am not a judge and will not judge her.

***

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 .

Cycling Is a Lot like Mediation.

After a heart attack almost five months ago (I’m fine now by the way), I bought a bicycle for exercise. I ride it regularly as I did today.

On today’s ride, it occurred to me that cycling is a lot like mediation.

To keep one’s balance, one must continue to look ahead, move forward (but not carelessly), and not look back too often (except to see if someone is about to pass you by).

Be prepared too. I wear a helmet for protection. People bring competent counsel to mediation. Same thing.

In both instances, people can fall down. Get up again and continue riding … or mediating as the case may be.

You may not get to the end of the path if you stop too soon.

And there can be rewards for finishing well:

I have my health. You might have the settlement you need.

***

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 .

Overcoming Anger and Resentment with Storytelling

We are all human beings and we all react strongly with negative emotions from time to time in response to certain triggers:

Because of something that someone said or did, or didn’t say or do, we might feel as if we have been “taken advantage of,” or disrespected or insulted in one way or another. And we “go ballistic,” feeling anger and resentment and more. That is the human experience.

I hear of these experiences frequently in the mediations I conduct; they seem to underlie most conflicts.

Often I use storytelling to deal with these strong emotions.

I believe that the stories I tell have a message and allow the person in distress to connect with the commonality of our human experiences and our emotional responses to them.

I also believe that if the emotional content of the conflict can be so managed with these stories, the person in distress may rise above the emotion to reflect on the situation causing it and perhaps find a way to deal with it.

Is this the Hill to Die For?” is one of my favorite stories for mediation. Let me tell it to you.

In this story, I am a very idealistic young litigator. I am very angry and upset. I have received annoyingly evasive answers to certain questions that I have thoughtfully and carefully asked the opposing parties. “How could they do this? Don’t they know their responsibility to answer completely and truthfully?,” I ask myself and others.  I am aware that the remedy is to file a motion with the court for an order compelling further answers but it is so expensive. I am consulting with the client now because the client must agree to pay for it up front with only the hope of reimbursement from the other side later if we win the motion. The client is a much older, wiser US Marine veteran with real world experience. He listens carefully to what I have to say and evaluates the cost vs. the potential benefit. Finally, he leans forward across the conference table from me and asks:

“Really David, is this the hill to die for?”

It is a question I have never forgotten and I use it all the time in mediation.

In a recent mediation, a service provider was suing for his significant fees which his client had not paid. The service provider was angry, insulted, and resentful, as he felt he should have been paid, that he gave good value and reasonable pricing for the work he did, and that the client was taking unfair advantage of him through the litigation to force him to accept less. (The client of course similarly thought she was being “taken advantage of” because she thought the billing was excessive in the first place and now she was in expensive litigation because of it.)

In a private caucus with the service provider, and so that he would understand that his situation was not unique and that he was not alone in his feelings of resentment and so forth under the circumstances, I shared with him that all of us legal professionals in the room had faced similar situations and emotions at one time or another

… even me as mediator, as when I had settled a case and did not get paid the remaining balance by one side or the other, or when a lawyer belatedly cancelled an upcoming mediation and refused to pay the agreed cancellation fee for the reserved time.

“Of course, as you do,” I said to the service provider (paraphrasing), “I felt angry, disrespected and ‘taken advantage of.’ We all do in similar situations. It is the human side of being in business, but fortunately it does not happen all that often.”

(Sharing personal reactions of my own, I believe, gives the other person permission to recognize and share his own emotions as well.)

Then I told him my story about the US Marine, and asked him directly afterwards:

“Really, Joe [not his real name], is this the hill to die for?”

He saw what I was getting at, reflected on moving forward beyond his emotion and, to his credit, applied business sense to reach a resolution he could live with, without the additional financial and emotional cost of not doing so.

Of course, he was not happy but he was sensible and ultimately satisfied nevertheless once he got past the emotion and made the best deal he could.

Recently, I had a personal experience in which I felt insulted and that I was “being taken advantage of.” I felt all of the associated emotions including anger, disappointment, resentment, and so forth.

It took all of my training and experience in dealing with others’ emotions to recognize and then manage my own, but I have finally come to terms with the situation by recalling my US Marine story and asking myself,

“Really David, is this the hill to die for?”

It is not.

And so, with the benefit of my own storytelling I have let go of the negativity I have felt and have moved past the difficulty.

Endnote: About four months ago, I received from my health care provider a book about taking care of oneself after a heart attack. There is a section on it about managing stress. It suggests that one way to deal with stress is to write about it. And so I have written, and so too this is how I know that the recent personal experience is not the hill to die for.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California who believes in storytelling, listens to his own, and tries to manage stress for his health. His business website is at http://karpmediation.com .

Voltaire was Right: Self Preservation is an Underlying Interest in Settlement.

A few months ago following a medical crisis, I started wearing a dog tag medical ID necklace.

I did not do this for its attractiveness, although the dog tag does have nice heft and it shows that nice EMT emblem known as the “Star of Life.”

Rather, I started wearing the necklace because it provides emergency personnel with engraved important medical information about me if something again should happen to me.

I wear this dog tag for my own self-preservation.

In mediation, I speak about self-preservation as well. Let me put this in context.

Conflict brings out tremendous emotion in people. Consequently, the mediation always starts with people stating or exhibiting their anger, outrage and so forth:

The plaintiff or claimant is outraged and demands justice from the defendant or respondent because of some real or perceived act or omission on the part of the defendant/respondent.

The defendant or respondent is outraged and wants justice because the defendant/respondent has bridled at being so wrongly accused of whatever bad act or omission has been claimed.

In both instances, both sides are full of venom for the other and believe they must start or continue on the path to trial over the dispute.

They assert their legal claims or defenses vigorously.

Moreover, they each believe they are right and they will win.

They overlook the risks and costs.

The disputants are caught up in the shortsightedness of a path toward possible self-destruction.

To reach resolution, they each need to be redirected away from their positions to focus on underlying needs, interests and priorities.

As the mediator, I am in charge of this redirection. See, https://karpmediation.wordpress.com/2011/06/16/serving-underlying-interests/

So sometimes I talk about Voltaire, who reportedly said:

“I was never ruined but twice: once when I lost a lawsuit, and once when I won one.”

See, Roston, L. (1994). Leo Roston’s Carnival of Wit: From Aristotle to Groucho Marx. New York, NY: The Dutton Group, p. 273.

As do most if not all mediators, I talk about the risk that the outcome is not guaranteed despite what people think, and that one side or the other will lose; and I speak about the consequences of not being right, i.e., not winning.

As do my colleagues, I also bring up the expense of the fight: I suggest that tremendous monetary (and emotional) resources will be eaten up, and those resources could be used elsewhere.

I am actually talking about self-preservation.

Sometimes this discussion changes the focus, so that flexibility and concessions will be forthcoming for the negotiation.

In consequence, disputants might realize that Voltaire was right (see above quote) and temper their demands and responses accordingly.

They might realize there’s too much risk going forward.

Or they might realize that they have another use for the money they might otherwise spend in the litigation.

Or they might realize that they do not have enough money to spend in the litigation.

Or they might understand that they need the peace that comes from settlement for their own health and well-being.

It is this shift in focus that brings about resolution if it’s possible.

It is the focus on underlying needs, interests and priorities that is so important.

Much more so than the legal positions of the parties, where everyone starts off in mediation.

So, here’s to self-preservation, the essential underlying interest in settlement.

Voltaire was right after all.

***

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 .

My Heart Murmurs its Thanks

My heart murmurs its thanks
To all who saved me
First to God who oversees all
And to my wife with whom I share my life
Then to my children and family
For their loving kindness and concern
And of course to the physicians
Whose magic opened my arteries … and my eyes.
The heart is the center of life
And of emotion.
I am overcome by all of it.
As I look to regaining my strength.
I am out of the heart of darkness
But not like Mistah Kurtz – he died.
My own river of life flows more freely now
And courses through my thoughts.
I am grateful for life, for family
And for the joy of living
To see what lies downstream for us all.

Making Very Difficult Decisions

Imagine a heart patient who does not know she is one. She does not like doctors, hospitals, medicines, invasive procedures, surgery, or the like. She wants no part of any of it, none whatsoever, not under any circumstances. She never did.

Suddenly, with disturbing chest pain, she faces all of it.

Reluctantly she sees her doctor and is given a few increasingly drastic choices: ignore everything and see what happens; try medicine only; have a noninvasive stress test that may prove inconclusive; or have an invasive but definitive angiogram.

For her, this is like going down the rabbit hole and she doesn’t like it one bit.

Consulting a cardiologist, she takes in as much information as she can about the risks, benefits, choices, and possible outcomes, and…

Overcoming her own resistance, she relents and grudgingly chooses the invasive angiogram recommended by her doctor, which turns out to be the right move.

Although in her best interests, it’s precisely what she never wanted at all.

And it was an extraordinarily difficult decision for her to make precisely for that reason.

In the mediation of litigated cases, people face very difficult decisions as well, although maybe not so drastic as the foregoing.

They may arrive thinking that they never will settle. They see only one course of action – they must fight to win — because they are certain they will win.

But their minds can change, as did the heart patient’s, with sufficient information about the costs, risks, and uncertainties of litigation, as well as the benefits, choices and possibilities of settlement, including ending the dispute and finding peace.

Getting good legal advice from one’s attorney helps with deciding what to do.

Actually listening to and learning of the perspectives of all other participants, including the other side, does so as well.

And exploring with the mediator the interests, needs and priorities of all concerned often tips the balance toward a negotiated outcome that may not be exactly what was desired but is nevertheless in the best interests of the settling parties.

And so it is with making very difficult decisions in mediation: the choices may be hard or unappealing (as in the heart patient’s scenario) but being open to changing one’s view, when faced with new input from others, may be beneficial for one’s future and peace of mind.

***

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

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