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 .
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.
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 .
Lately, I have seen attorneys’ fees – whether paid, incurred or contingent – becoming more of an issue for disputants in mediation.
I am not criticizing my colleagues at the Bar; rather, I am asking that they be mindful of, and careful about, the possible effect of their attorneys’ fees on the prospect of settlement.
In the real estate and business disputes that come before me as mediator, litigants are usually being charged on an hourly basis, or similar, by their attorneys, and they struggle to pay, or moan about paying, their attorneys’ fees, which can be pricey.
Consequently, if they are the parties seeking money in settlement, they generally want reimbursement of their attorneys’ fees as part of the funds they are demanding to settle.
For the disputants, attorneys fees are a tangible out of pocket cost of the dispute.
However, unless the attorney fees are recoverable by contract or statute, attorneys’ fees are a sunk cost and not something to be yielded at trial, so not usually includable in a mediated settlement.
Even so, if a term of a contract between the disputants provides for reasonable attorneys fees to the prevailing party, there is generally no prevailing party in a mediated settlement, so contractual attorneys fees are not usually includable in a mediated settlement either.
This is why settlement agreements usually contain a provision that “each party will bear his or her own attorneys fees and costs.”
But the litigants don’t like it; they perceive that they have spent too much in and for the dispute, and they want their money back.
Even in contingency cases, the percentage of funds that would go to the attorney decreases the net recovery by the client, and the client doesn’t like receiving less rather than more.
So, there is a delicate balance to be achieved by the lawyers: doing enough lawyering to create the right leverage for settlement without causing the fees to become too large a component for resolution.
If the case is over-lawyered, and yes there are some, the fees become “the tail that wags the dog” which may create an insurmountable obstacle to resolution.
This makes it so much more difficult to help the client settle.
That is, unless the lawyer has prepared the client, early and often, for the prospect that, likely, “each party will bear its own attorneys fees and costs” in the mediated settlement.
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 .
Sometimes in mediation, I witness what others might perceive as outrageousness, and I have to wonder what is the goal, the motivation, or the underlying interest, in such behavior.
Such thoughts have occurred to me in the wake of Justice Scalia’s sudden death this past weekend – may he rest in peace – and the GOP’s immediate reaction publicly to threaten election year obstruction of the Constitutional imperatives of the sitting President and Congress, the former to nominate a replacement and the latter to “advise and consent” vis-a-vis the appointment.
Certainly, many see these Republican behaviors as obstructionist, outrageous, and counterproductive by worsening the political divide.
Personally, I am outraged, but that is not the point.
Also, I think Justice Scalia would be outraged as well given his preference for strict construction of the Constitution.
But maybe there is method to the GOP’s madness if one looks at the election landscape.
With there being such disparity, even dysfunction, among the Republican candidates, and their base’s lack of unity, perhaps the GOP’s goals here are (a) to unite the Republican base by whipping them into a collective frenzy over the perceived “danger” from the Supreme Court nominating process this year, and thus (b) to strengthen Republican chances to win in the General Election.
I perceived Senate Majority Leader Mitch McConnell’s reaction, moments after Justice Scalia’s demise was announced, as “knee-jerk” and in poor taste but it’s not up to me to label it.
Maybe there was more to it than that.
Perhaps in the calculus, the cost of public outcry from the Left was determined to be less than the benefit to the Right.
In mediation, there are always risks and benefits to what people say and do in their negotiation.
This may be no different.
David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who is also fascinated by the politics of the day. His professional website is at http://karpmediation.com .