Skip to content

Mediators as Insulation

I was reading about the installation of a soundproof phone booth in the office of Environmental Protection Agency Administrator Scott Pruitt and I was thinking – like soundproofing we mediators are insulation as well.

So I looked up insulation on the internet and found this description: Insulation is ‘[m]aterial that retards or prevents the progression or transmission of electricity, heat, moisture, shock, or sound from one item or medium to another.” See, http://www.businessdictionary.com/definition/insulation.html .

Yep, that’s us mediators.

Between the disputants, we mediators sometimes must act as a buffer to diminish or prevent the progression or transmission of that “passionate intensity” [William Butler Yeats’ phrase] that exists in the emotional context of nearly every dispute.

Sometimes I hear in a private caucus with one side, “you tell that so-and-so [expletive deleted] that [fill in the blank].”

Interestingly, such a comment as the foregoing might come from the attorney or the attorney’s client depending upon who is more worked up.

Usually, instead of blithely leaving one room and entering the other to deliver the message verbatim, I wait a few moments until the emotional storm passes and then calmly ask:

“Do you really think you want me to say this? Do you think it will help? How do you think it will be received?”

Or,

“Perhaps I can use different words, or, maybe we shouldn’t even go there.”

Or,

“Maybe let’s take a break and see if there is a different way to express how you feel.”

Or,

“Why don’t we simply make a proposal that can focus us on the job a hand?”

Of course, we mediators know intuitively that transmitting an angry message usually just brings about the ire of the other side and doesn’t lead to a productive resolution of the dispute.

This is why we mediators must actively and diplomatically work to decompress the situation if it is possible, although sometimes it is just not possible.

Thus, with sensitivity and good sense, we act as insulation to help retard or prevent the progression or transmission of that electricity, heat, or shock, that comes with the territory.

We are not just messengers going from one room to the other.

***

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 .

Advertisements

This Remarkable Spring of Hope

Spring and Hope are the names of streets in downtown Los Angeles, but that’s not what I want to talk about. Instead, there’s this:

There is something remarkable going on here in Los Angeles and across the country. Yesterday, thousands of young people  “marched for [their] lives” downtown and elsewhere to oppose gun violence.

And something else remarkable is occurring: As sometimes happens, there is a conjunction, or overlap, this year of Holy Week, the week preceding Easter, and the commencement of Passover.

What ties all of this together, at least for me this Spring, is Hope (with a capital “H”) for the future, whether it is hope in a religious context or in a societal context.

In the context of mediation, Hope is also important. As mediators, I believe it is part of our job, if possible, to generate hope for a resolution of the dispute before us.

Hope, or optimism, may deliver a settlement in the mediation session itself, but sometimes, after a long and drawn out negotiation, hope flags as the day wears on and the people wear out.

That’s what happened in a recent mediation. Each side began optimistically, but their negotiation – particularly but not only because they would not recognize the needs, interests, priorities, and most of all, the limitations of the other side – led them to a disappointing end to the day, despite all efforts to the contrary.

This is where the persistence of the mediator comes in.  I have written about this before. See, https://karpmediation.wordpress.com/2013/10/11/following-up-and-the-importance-of-being-earnestly-persistent/

A few days later, after allowing the parties to ruminate about the objectives at hand and the obstacles before them, I sent out an email inviting a call with me to discuss resumption of the negotiation.

A short time later, the phone rang and hope was restored as the parties (though their counsel) privately signaled to me that maybe they could stretch a little more to reach that elusive middle ground that may constitute their settlement (if they can get there).

So, “hope springs eternal” as the saying goes. Hopefully the case will settle.

And, to return where this piece began, i.e., in the context of this remarkable Spring, I wish for all of us Hope for the future, for the freedoms we cherish (to speak out, to assemble, to practice our religions freely, and so forth),  for religiously meaningful observances this Spring, and, in light of yesterday’s march, for the safety of school children and others everywhere.

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

Mediation as a Stress Test

I had a stress test yesterday, also known by other names including “exercise stress echocardiogram.” This is the one with monitored exercise on a treadmill to increase heart rate and to ascertain heart function.

I passed the test, I’ll have you know, and I am okay.

I must admit, however, that the test is aptly named.

I had stress before the test, during the test, and for the rest of the day after the test.

But after sleeping well and for a long time overnight, I feel fine today.

This must be how people approach mediations, and I see it all the time and hear about it as well.

Sometimes, I can see their distress in their body language or facial expressions. Recently, one participant admitted that he was nervous at the outset of the day’s mediation session.

The best we can do as mediators is to try to make the participants feel more at ease. This is not rocket science, but it’s not that easy every time either.

Here’s how I do it:

By checking in with people to see how they’re doing, like simply asking, “Are you okay?;”

Or by giving them a break; or by feeding them lunch; or sharing a story;

Or, sometimes most effectively, by simply sitting with them and schmoozing – getting to know them and letting them know me …

Which of course reminds me of the song from The King and I, the lyrics for which fit perfectly here:

“Getting to know you / Getting to know all about you / Getting to like you / Getting to hope you like me….”

The other day, after a particularly stressful mediation concluded (with a signed settlement agreement I might add), I received an email from one of the lawyers who praised my “keen interpersonal skills” among other things.  [See the entry from R.L.A., Woodland Hills, CA, at https://www.karpmediation.com/testimonials/ ]

I guess that means I successfully managed the stress in the room that day, among other things.

Sometimes, after the conclusion of a stressful mediation, I simply say, “You’ll feel better after a full night’s sleep” or “Now that the dispute and its uncertainty have ended with this agreement, you’ll feel better in a few days” or, “Have a nice glass of wine tonight [if you like wine] and you’ll feel better.”

And, you know, it’s true that I felt better from the stress echo test after a full night’s sleep.

And the glass of red wine at dinner last night didn’t hurt either.

***

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 .

Where There Is Hate, or the Need for Justice, Some Cases Just Do Not Settle

Tonight begins the observance of Purim, a celebration of justice over hate.  Here is a brief summary of the holiday: King Ahashverosh’s Queen Esther, who is Jewish, thwarts the plot of Haman (the King’s evil adviser) to kill all of the Jews of ancient Persia, Haman is hanged, and the Jews are saved from total destruction. For more detail, see, https://reformjudaism.org/jewish-holidays/purim/purim-history

“Hate” and “Justice” are strong drivers of human emotion and behavior.  It is worth noting incidentally that:

In its annual Audit of Anti-Semitic Incidents, ADL found that the number of anti-Semitic incidents in the U.S. rose 57 percent in 2017 – the largest single-year increase on record and the second highest number reported since ADL started tracking such data in 1979.

https://www.adl.org/education/resources/reports/2017-audit-of-anti-semitic-incidents .

So, how does this relate to mediation?

The answer is:

It is a bit tangential, but here goes:

In mediation, thankfully, I don’t usually hear comments that are overtly bigoted or anti-Semitic; however, I do hear comments such as “I hate my opponent for what he did to me,” or, “I am just so insulted by her that I hate her” or words to that effect.

And sometimes I hear people say that they need “Justice” above all else.

And this is how it relates to mediation: “hate” (including insult) and “the need for justice,” separately, may preclude resolution by settlement in mediation in some cases.

I have written about both of these issues before.*  See, When people cannot get past having been insulted, sometimes it’s war It is very hard for people to give ground ; Courts, Not Mediators, Dispense Justice ; When Not Everyone Wants Mediation [“Some people feel so strongly – that they must have “Justice (with a capital ‘J’)” – that mediation is not a good idea for them.”].

In cases such as these, settlement just may not be possible.

In any event, back to the holiday, where this piece began.  For those who celebrate, I wish you a Happy Purim. Let us all hope for improvement in the world such that bigotry will be no more, and that hate and the need for justice can be managed so that people can get along with one another … and maybe settle their disputes.

*PS  I have also written extensively about how, when and where settlement can be possible. Feel free to rummage through my other posts at https://karpmediation.wordpress.com/category/mediation/ .

 

***

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 .

Taking Control (per Aristotle)

Litigants often feel as if they cannot control the litigation in which they are involved. Or the risk. Or the expense.

Certainly, to a degree, they can direct their own attorneys to do, or not to do, something, but many do not fully understand the twists and turns of a litigation practice or what is likely the best course of action under the circumstances. Which of course is why they have a lawyer in the first place.

On the other hand, litigants cannot control their opposing counsel.

Neither can they control the court processes or even the judge.

And thus, they cannot control the outcome at trial.

In mediation, however, litigants can control the outcome by settling, if appropriate under the circumstances.

Although there are many reasons given for not settling, including the perception that the reward of going to trial is greater than the risk or expense, or a whole host of other emotional reasons that lead to intransigence, stubbornness, or the like …

there are, as you know, many good reasons to settle, including certainty of outcome, control of litigation fees and costs, peace of mind, and so much more.

It only requires taking control of the situation, which mediation allows.

As Aristotle (reportedly) said:

“When we are free to act, we are also free to refrain from acting, and where we are able to say ‘no,” we are also able to say ‘yes.’” Roston, Leo. Leo Rosten’s Carnival of Wit. New York: A Dutton Book, 1994. Print. P.233.

Aristotle was a smart guy. His observations are still good.

***

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

Serving Lunch at the Mediation

In many instances, I host lunch during my mediations. I think it is very helpful. Here’s why:

People appreciate the courtesy. It allows for the mediation to continue through the lunch hour without substantial interruption … and time is money.

More importantly, I don’t want people to be “hangry” (my daughter’s word) during the negotiation. I think that food calms people and makes them more receptive to offers and counteroffers.

In other words, sometimes it “takes the edge off” and “smooths” the exchange of ideas.

Also, eating is such a social thing. It allows for freer thought or “brainstorming” among those who eat together. I have written about this before although in a different context .

I offer lunch for selfish reasons as well. It takes time for most negotiations to yield good results, and frankly, having lunch during the mediation keeps everyone in the mediation longer, with more thoughtful attention during a longer session.

Finally, I think it creates reciprocity. When I have provided lunch, I can then ask for something, like these (although more subtly or with more tact than I have written, but you will get the idea): I gave you lunch; could you give me another offer or counteroffer to take into the other room? Or, how about reconsidering what is on the table and maybe adding (or subtracting) something in response? Or, why don’t we try again with something else before you pack up? Or, whatever.

So, I see offering lunch as a good idea for mediation. If appropriate, I can and do also tailor the lunch order to the participants. I will order Kosher food, for instance, if it seems right to do so. I remember having a corporate governance mediation in Chinatown among disputing members of a Chinese club, so I ordered Chinese food from a favored restaurant. That was the best lunch.

I think that there is some science behind eating and negotiating well, but you can look it up on the internet as well as I can.

In the final analysis, I don’t like to go hungry either, and I believe I am better at mediating when I am not working with an empty stomach.

So, “Bon appétit” or “Ess gezunterhait” or  “Chī hǎo hē hǎo” as the case may be.

***

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 .

When Spouses Attend the Mediation

“My client wants to bring his spouse to the mediation, is that okay?”

(Here I use spouse for simplicity, but it could be any close confidant – one’s significant other, best friend, parent, child, sibling, or other family member, business partner or anyone in whom the disputant places trust and confidence.)

My response usually goes something like this:

“Many people don’t like to make major decisions without a spouse’s input. Certainly, I wouldn’t make such a decision without consulting with my wife. I think it would be okay with me, but we should ascertain whether the other side is okay with it.”

Usually the other side is fine with having the spouse there, but it is always good to ask to make certain.

Usually one’s spouse – or other confidant – is a good resource for the mediator, not always, but usually.

Sometimes the spouse is simply there for moral support and is the ally of the disputant.

But sometimes the spouse, who might be more detached from the controversy, can become the ally of the mediator, which can be most helpful in resolving the dispute.

Sometimes the spouse is actually the decision maker.

On the other hand, sometimes the spouse is a distraction, so it is best also to ask if his or her presence will be helpful … or not.

Not long ago, William Ury of “Getting to Yes” fame spoke to the attendees (me included) at a recent Southern California Mediation Association annual conference and introduced his recent book, “The Third Side.” Afterwards I read the book. It was excellent.

The spouse might be the third side … as in your side of the conflict, the opposing side, and the third side.

A person on the third side is not directly a part of the conflict, more like an outsider but not. As an example, the mediator is a third side to a dispute.

The “third sider” spouse may be useful in resolving the dispute simply by being present. Imagine, for instance, that the disputant behaves better than otherwise because her spouse is present.

Or, the spouse becomes a consultant to the disputant to help in the decision making process.

Or, the spouse intercedes to help translate some of the mediator’s ideas into words in the couple’s language that the distressed litigant can understand.

Or, a spouse is able to comfort or console the disputant who is clearly having an emotionally difficult time dealing with the conflict and its resolution.

There are many roles that a spouse, or other trusted confidant, can play to help resolve the dispute. Ury identifies ten of them. See, http://thirdside.williamury.com/

So, yes, having the spouse attend is, in most cases, not only okay with me but much appreciated.

***

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 .

%d bloggers like this: