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Returning to Mediation

Would you return to mediation if the first session does not yield a settlement then and there? This is a puzzle for many.

There are many reasons why the first session may not end in agreement:

My colleague and friend, Jan Frankel Schau, ruminates about the Zone of No Possible Agreement and suggests that people might walk out of the mediation session if the other side’s posturing causes its demands or offers to be stubbornly and unyieldingly outside the Zone of Possible Agreement.

Thus, Schau recommends, and I don’t disagree, that if the offers or demands are outrageously too low or too high and if there is no likely movement or flexibility, there is no reason to stay and waste time on a futile negotiation.

There, it is an appropriate strategy to end the mediation session with a walk out. See,

There are other reasons as well, about which I have already written, where the first session of mediation may need to stop before resolution: e.g., if there is a looming litigation event that should occur first (demurrer, summary judgment motion, deposition, pending written interrogatories or document requests) and if the mediation was scheduled beforehand and perhaps prematurely due to a judge’s request or a contract provision. See, .

There are other, more personal reasons as well for mediation sessions to end without resolution, because things happen in our own lives:

For instance, while conducting a mediation one day, I received a call from a hospice nurse caring for my father A”H who said, “David, you need to come see your Dad, now.”

Sometimes, a child of one of the litigants gets sick and suddenly needs a ride home from school.

Or a litigant herself falls ill during the course of mediation.

These things do happen from time to time.

In most cases, the frustration is palpable among the participants, of course, as the mediation session is interrupted and ends prematurely.

But is the mediation over?

Not necessarily.

Wisely, people can and do reschedule a second or subsequent session of mediation sometimes. They pick a date and put the new session on calendar while we are all still together.

Ah, but does it stay on calendar?

Not always, and this is the hard part.

I have previously written about the analogy I use, that people are like rubber bands. See, .

Thus, in the same way as when one let’s go of a stretched rubber band, when the tension of the mediation session is released, people sometimes go back to original positions if the mediation session is interrupted or ends without an agreement.

The momentum is broken, they become entrenched once again in their dispute, and that is the risk.

So, it takes enthusiasm, optimism, and a good dose of salesmanship sometimes, to encourage people to resume the negotiation on a different day.

Maybe this comes from the mediator, but more likely it is the litigator, as good counsel for his or her clients, who needs to be the cheerleader for mediation to resume … and for resolution to continue as a possibility.

Sometimes that is a Sisyphean task when the client wants to re-engage in the litigation war.

But if the opportunity arises to remind the client of the possibility of a mediated resolution, the client should be so reminded … if, as Schau suggests, there is “room for flexibility” in the negotiation, and a willingness on both sides to reach a tolerable outcome.


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

Selichot: Forgiveness, Acceptance and the Ability to Move On.

I am not a religious person, but I do look to Jewish tradition for inspiration sometimes, as in this, my 200th post! on this blog.

Now, as we do every year, we are approaching the Jewish High Holy Days and the Days of Awe (Yamim Noraim). The Days of Awe are the days between Rosh Hashanah (The Jewish New Year) and Yom Kippur (the Day of Atonement).

“During this period, individuals examine their behavior over the past year, consider atonement for misdeeds, and seek a closeness with God. Practically, this is done through repentance, reconciliation, and forgiveness.” See, .

In the month of Elul, which precedes Rosh Hashanah, we prepare for what follows. On the Saturday night preceding Rosh Hashanah there is a beautiful religious service known as Selichot. (The word Selichot is also used more broadly to refer to penitential prayers said during this time of year.)

Selichot means forgiveness, which is so central to this time of year, and also to mediation (in many cases, not all).

In mediation, I come across people who are caught up in the anger, outrage, regret, embarrassment, defensiveness, etc. etc., of their conflict, and usually they blame the other person/people in the dispute for their predicament.

Without help, they cannot see past this to get to settlement or to any resolution of their dispute, or to peace.

Many times the lawyers can and do help with this, but their focus is not always on the human/emotional component of the conflict but instead generally, not always, on the legal points and authorities they bring to the table.

The trained mediator sometimes can help. I try my best, with empathy, an attentive ear, and nonjudgmental sincerity, among other things.

By way of example and not limitation [that’s a phrase I remember from law practice] …

In dealing with anger, sometimes I try to speak about a quote attributed to the Buddha, or maybe to someone else, that goes like this:

“Holding on to anger is like drinking poison and expecting the other person to die.”

I then also talk about forgiveness when appropriate.

In a book (I forget which one) that I read by Kenneth Cloke, who writes extensively and perceptively about conflict and dispute resolution, Cloke refers to forgiveness this way:

“Forgiveness is giving up all hope for a better past” or words to that effect.

I like that a lot.

It points out the two things I see as most important in forgiveness, and in getting to the resolution of a dispute in mediation where the emotional blocks that include anger, retribution, revenge, and so forth, are present.

They are: Acceptance and the Ability to Move On with one’s life.

In the Days of Awe, Jewish tradition focuses on looking inward, examining ourselves, our circumstances, our actions, our deeds and misdeeds, our foibles and mistakes, and then doing something about all of it: repenting, reconciling, forgiving.

(We do not only forgive one another; we can and do forgive ourselves as well).

To accept the circumstances of one’s own situation, within the context/process of mediation, is also to allow one to forgive himself or herself, and/or the other person/people, in order to move on with one’s life.

In the mediation context too, looking inward can be most helpful and productive, if people will go there. (They don’t always.)

But it will take the time and patience of all concerned for this to happen, if it will.


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

A Negotiation at the Hollywood Bowl.

Last night, my wife and I attended a summer concert at the Hollywood Bowl where we witnessed a negotiation that turned out quite well actually.

The negotiation took place between the musicians of the Los Angeles Philharmonic Orchestra and its guest conductor.

You probably know this:

Each of the musicians is a top professional and each has personal pride in performing. Each has a vision of how the music should be played, and there is probably more than a little ego involved.

The same is true of any guest conductor.

So here’s what they did:

They negotiated: when to start, when to stop, what tempo, what dynamics (i.e., how loud or soft), when to play out (e.g., solo vs. ensemble playing), when to subordinate to another musician playing a different line of music vs. when to join in, and so much more.

Inasmuch as each musician wants to shine, and so does the conductor, there is a constant struggle over who is in control of the performance and how it will go.

(Sort of sounds like a mediation, doesn’t it?)

Anyway, the concert was excellent. Here’s why:

Orchestral performance is a collaborative, balancing process.

That is, there’s a lot of give and take, and people have to work together for it to come out right.

Just like in mediation.


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

Attorney Competence at the Mediation Table.

I mediated with a really good lawyer the other day. Here’s what I mean:

• Her case was ripe for mediation: she had undertaken and completed sufficient discovery so that she knew her case and the other side’s case well.

• She had well prepared her client in advance and both were ready with realistic expectations and a plan for negotiation.

• In advance, she had sent to me and to the other side an enlightening and useful mediation statement.

• She participated with me in a private pre-mediation telephone conference that helped us both.

• She understood the process and participated fully in the mediation, advocating zealously and meaningfully but not overly aggressively or emotionally; she never lost her composure.

• She asked perceptive questions and really listened to the responses; she understood the needs and interest of both sides of the dispute.

• She understood, allowed, and used the pacing of the mediation to negotiate and she adapted to the moves of the other side.

• She managed her client well so that they were unified in their approach, but knowingly let the client speak because the case was the client’s and not hers.

• She allowed me as mediator sufficient latitude in the management of the negotiation to say and do what needed to be said and done and she never got in the way.

• When the parties finally came to terms, she presented a pre-prepared settlement agreement (with a few blanks for negotiated deal points) which she had drafted and brought for use if the negotiation yielded a deal, and which was acceptable to the other side.

Of course the negotiation was challenging and no one presumed that it would result in resolution; nevertheless the mediation was made easier and more likely to succeed by the competence of this attorney, who really helped both in the dispute resolution process and in the resulting settlement of the case.

Congratulations to her (and to her client) for a job well done and for being a good example for others.


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

Are you a pirate?

Did I ever tell you my story about being a pirate?

Well, I’m not a pirate, I just don’t hear so well, although now I have hearing aids which help a lot to overcome these kinds of incidents.

But let me tell you my pirate story…

I had a call on my office phone one day from a volunteer with whom I was working in Scouting.

It sounded urgent, so I returned the call and spoke to his wife who answered.

I explained that I was returning a call that sounded urgent and was met with the question:

“Are you a pirate?”

“AM I A PIRATE?” I responded.



“Not pirate, pilot. My husband is a pilot and he’s just leaving for work,” she said.

“Oh, I said, I guess I didn’t hear that right. Have him call me when he returns.”

Later, I told this story to my cousin and best friend who has since passed away.

Often thereafter, when seeing one another he would greet me simply with “ARRRGH” and we’d both laugh hysterically.

I miss him terribly, but think of him often, especially when I tell this story.


David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who now wears hearing aids that overcome these kinds of audio bloopers, mostly. Don’t worry, he also listens very carefully in mediation. His website is at .

Feeling Nostalgic about Summer Camp

This has nothing to do with mediation. I just want to write about something else today.

I joined a Facebook Group called “I Went to a New Jersey Y Camp,” because I DID go to a New Jersey Y Camp!, from 1963 to 1967. See,

So I have been feeling nostalgic reading the posts and seeing the pictures in the Group today.

I was really lucky, thanks to my parents/grandparents, to go to a “Y” Camp for eight weeks every summer for five years.

This was the summer sleep-away camp of the YMHA-YWHA of New Jersey, called Cedar Lake Camp located in Milford, PA, far away from home.

It was run in the Conservative Jewish tradition which was fine with me, as I learned a lot about myself and Judaism in those years, participating in religious services and being immersed in Jewish culture and so forth.

Every summer I had wonderful camp experiences: making friends and renewing friendships, swimming in Cedar Lake twice daily, going sailing, canoeing down the Delaware River, learning photography, listening to short wave radio, weaving baskets and making pottery, sharing comic books, hearing and telling stories, singing songs, performing in plays, having cookouts, growing up.

So let me tell you what I’m remembering (probably not completely accurately) about growing up at camp, this as a result of seeing a posted picture today of an adolescent boy with his arm around an adolescent girl:

It’s 1967 and I’m 13 years old. It’s my last summer at camp because our family is moving to California.

The summer is really “in tents,” literally.

That is, I have graduated from the younger Divisions that are housed in cabins, and am now in a US Army Surplus tent on a wooden platform that sleeps four campers (without the counselor!) down by the lake.

Someone is calling my name outside the tent because I am always a willing substitute for a camper who doesn’t want to go on the canoe trip scheduled for his group (his “Bunk”).

So, I am going.

This time I am lucky. It is a coed canoe trip (the first in my experience), with some of the girls from the same age group down the hill at Camp Nah-Jee-Wah.

And Debbie is going (not her real name).

I’m a little scared but excited because, in my overactive adolescent imagination, she might just be my first camp girlfriend.

Who knows what can happen!

Well, nothing really happened after all.

The canoe trip was three days. Debbie and I canoed together, we ate together, and finally we slept together — but don’t get the wrong idea.

We slept in our own sleeping bags under the stars; Debbie only agreed that our sleeping bags could be in the same campsite together.  We were only 13 after all.

But I had a wonderful time, and I still have great memories, still fueled by my adolescent imagination.

I think that nothing ever came of it between Debbie and me that summer, except that I really felt that camp was helping me to grow up.

And this was a big deal for me then.

So, here’s my thanks to Cedar Lake Camp … and to Debbie … for my really memorable camp experiences.


David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who sometimes wistfully longs for “the old days.” His business website is at .

BSA Is Changing (I Hope), Which Is Laudable, but Only Because it Must.

Because of all of the good qualities of the Boy Scouts of America as an excellent youth development organization, I was a very active adult volunteer in BSA for many years.

Some of my volunteerism in Scouting, of which I am very proud by the way, is summarized on my website at .

At the same time, because of BSA’s detestable policy excluding gays in leadership positions (my opinion), I was a very vocal advocate for change from within.


17 years ago, I negotiated an amendment to the Charter Agreement of Temple Beth Hillel, the oldest Reform synagogue in the San Fernando Valley (metropolitan Los Angeles area), to enable it to sponsor a Cub Scout Pack and later a Boy Scout Troop.

Those units, inclusive without regard to sexual orientation from their inception, are still thriving 17 years later.

The amendment said this: “We select our leaders based upon values that we find important to our faith.”

This prescient sentence now encapsulates the imminent change in the BSA policy, which is to say that the national prohibition will go away and that sponsoring religious organizations will be able to choose for themselves whether or not to allow gay leadership in their scout units.

This is certainly an improvement, as it allows more liberal religious organizations the freedom to sponsor scout units and to choose adult leadership without regard to sexual orientation.

It also allows the status quo for conservative religious organizations.

This imminent change comes about, not because BSA has had an epiphany that it was wrong to exclude gays from leadership, but for more practical reasons.

Notwithstanding the decision in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), upholding BSA’s right to exclude gay leaders, BSA probably now realizes that Dale would not be so decided today, given the dramatic evolution in gay rights culminating most recently in the marriage equality decision in Obergefell v. Hodges, 576 U. S. __ (2015).

Even more recently, “the Equal Employment Opportunity Commission ruled that sexual orientation discrimination is already illegal under Title VII of the Civil Rights Act of 1964.” See,

This is probably equally problematic for BSA which undoubtedly prohibited avowed gay individuals from working for BSA at scout camps and the like.

In the face of the dramatic and fast-moving legal trend favoring LGBT rights (at last!), BSA probably now fully realizes the tremendous economic and social cost of defending its (indefensible) gay exclusionary policy in courts across the nation, in administrative hearings, in the media, and in its own councils and scout units.

That is the reason, I think, for the change.

Nevertheless, I applaud the BSA for taking the lead from its National President, Former Secretary Robert Gates who said at BSA’s National Annual Business Meeting in May 2015, “We must deal with the world as it is, not as we might wish it to be.”

I welcome the change.


David I. Karp is a full time mediator of real estate and business disputes in Southern California and a retired volunteer in the Boy Scouts of America. His website is at .


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