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I Lost A Friend on Friday.

I lost a friend on Friday. His name was Gil. Perhaps it was an unlikely friendship. He was 95 and I am just 62.

He was actually the “boyfriend” of my mother in law. I call her Mom although she is not my mother.  She is 88.

Gil was a friend of mine nevertheless.  Maybe he was a substitute for the father figure I lost when my Dad died.

We felt like we had a father-son relationship although we weren’t father and son. We were just friends.

Before he was no longer able to travel, we liked to go out to dinner or he came over for a meal, but not alone. We were a foursome, Mom and Gil, my wife and me.

We had nice conversations and we really enjoyed one another’s company.

It made me laugh when we brought them home, each of them with their own walkers. It reminded me of that scene with the dancing ladies and their walkers in Mel Brooks’ musical, The Producers.

Or maybe it reminded me of a slow train, with one following the other, very slowly.

When he could no longer travel, we brought dinner to Gil and Mom, which they both enjoyed.

I read the newspaper to him a few times in the past month since he could not see and was for the most part confined to his wheelchair in his room, mostly alone.  He also didn’t hear so well, so I had to speak very loudly.

Someone said it’s a mitzvah what I’m doing. But that’s not the point. We both appreciated the time together.

I visited him twice last week just before he died. Each time he was resting peacefully in bed.

I said only a few words to him which he couldn’t hear anyway. I couldn’t say anything more without choking up. I just held his hand for a few moments.

Gil was a good friend of mine. Now he is gone and I will miss him.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California who doesn’t always write about mediation.  His business website is at http://karpmediation.com .

 

Doing Things We Do Not Like To Do.

It is human nature not to want to do things we don’t like to do.

I, for instance, don’t particularly enjoy eating/not eating in accordance with certain dietary restrictions, taking medication and/or exercising frequently.

But I have come to terms with this regimen because of my heart condition.

And I know that it is bad for me to do otherwise.

And so I do what I must do.

It occurs to me also that some people do not like to settle their disputes even though it may also be bad for them not to do so.

Here are some of my perceptions as to why I think people dislike settling:

The dispute gives them purpose. Some disputants must prove themselves right and the other person wrong and the forum in which to do so is the legal battle in court or arbitration, not in settlement.

The dispute is exciting. It gives some people a rush of adrenaline or some other stimulant. I think this is the old “fight or flight” response at work, with people choosing the former over the latter.

The dispute gives them something to do. There is much activity in litigation, gathering witnesses and evidence, shoring up one’s side of the case, trying to disprove the other side’s case. It is a focus in which people can spend a lot of time and energy and it gets people going.

The dispute gives them something to talk about. Endless conversations at cocktail parties, among friends, and so on, are filled with the vituperation and justification that pervades the disputant’s consciousness.

The dispute is safe. People feel victimized by the others involved in the dispute. Thinking and talking about it gives people a chance to excuse themselves from responsibility and/or seek and receive empathy or sympathy in response.

One of the most difficult questions for these disputants is this, and I ask it in many mediations:

“Will you be able to let go of the conflict and move on with your life?”

Sometimes the answer is “no.”

However, sometimes it is “yes” if they realize how they have become dependent on it and the harm it is doing.

The trick is to get them to realize their dependence on the dispute and how it is bad for them.

Maybe this phrase is attributable to the Buddha or to other sources, but I do say this sometimes to underscore the harm in continuing the dispute:

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

Sometimes that gets their attention, and with their new realization, sometimes they can come to terms with the dispute and resolve it … just as I have come to terms with my heart condition and I do something about it.

Sometimes we simply have to do things that we do not want to do.

***

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 .

Hearing and Listening are Different from One Another.

Hearing is a physical attribute that allows the brain to receive and interpret audible sound waves including speech.

Listening is giving one’s full and complete attention to the speaker so as to interpret/understand the words being spoken (or not spoken) and the underlying meaning being communicated.

Hearing and listening are different from one another.

Not hearing has been referred to as an invisible disability. I deal with this disability every day.

Nevertheless, I believe that I am a very good listener and people have told me as much; it is a part of my profession as a mediator to listen well.

I do my part in mediation to facilitate effective communication by wearing hearing aids and letting people know at the outset that I might ask someone to repeat something if I haven’t heard, correctly, or at all, what was said.

Usually, participants in the mediation are fine with this.

Some hearing situations are challenging but they can be overcome with assistance from the speaker.

Facing the listener helps.

Speaking without hands in front of the mouth is good.

Talking a little more slowly and distinctly is terrific.

Talking a little louder, but not yelling, is okay too.

Some physical environments are challenging as well.

Large meeting rooms and restaurants with lots of background noise can be very difficult. Cavernous inside spaces, like airport terminals and shopping malls, are tough too. So I avoid many such environments when possible.

And, certainly, I don’t mediate in those spaces.

Sometimes hearing on the telephone presents another challenge if the caller is using a cell phone instead of a land line or if the caller is cradling the phone under his or her chin and not speaking directly into the telephone.

But much of my professional work in mediation is face to face in a small conference room, so hearing is manageable and the opportunity to listen is uncompromised.

Or I use email from the office sometimes instead of telephoning. This is manageable too.

When people do not understand an invisible disability such as mine, sometimes it is frustrating:

The restaurant hostess the other night seemed not to understand how the environment was making dinner with my wife a difficult situation for me.  Actually, I don’t think she cared to learn either.

I do appreciate when those with whom I come into contact professionally are careful and considerate in their communications with me and help me compensate for the hearing loss.

Then I can, and do, listen, and listen well, so as to help the disputants help themselves.

***

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

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 .

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