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Time and Patience

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I think about time a lot. I read science fiction novels involving time travel. I have a chime clock in my living room that I cherish, also clocks – usually more than one – in every room.  Now into my 60s, time seems to have sped up through the years and gets faster. With occasional insomnia at night, time awake passes ever so slowly.

In mediation I am aware of the passage of time, too, in several respects.

First, time is money in mediation. Litigants are paying me and their lawyers, and a full day’s mediation can become quite expensive. Consequently, people become anxious and impatient with the passage of time. In my Masonic Lodge, we sometimes talk about “waiting a time with patience.” That’s good advice and I mention this sometimes.

Second, mediation is a process, and it takes time to make decisions. I am reminded of TS Eliot’s words from The Love Song of J. Alfred Prufrock, a favorite poem of mine: “Time for you and time for me, / And time yet for a hundred indecisions, / And for a hundred visions and revisions.” Hence the need, again, for patience.

Third, the time must be right (“ripe”) for mediation. Mediation must not be too soon or there will not have been enough emotional or substantive development to bring about settlement; and mediation must not be too late when so much money has been expended that the attorneys’ fees become the proverbial “tail wagging the dog.” Planning and patience are key here as well.

Nevertheless, as the Good Book says, “there is a time for every matter under the heaven.” (Kohelet – Ecclesiastes – Chapter 3 at https://www.chabad.org/library/bible_cdo/aid/16464/jewish/Chapter-3.htm) .  And so I write:

Thank you for taking the time to read this post.

***

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 .

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Mediation as a Stepping Stone to Settlement

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Most mediators have been taught, and they will suggest to the participants in their mediation sessions, that “mediation is a process not an event.”

So, when I see a headline, or hear, that “the mediation failed,” I shake my head as that is a naive way to look at the process.

Not every mediation results in a settlement then and there, but that does not mean that the mediation was a failure. Settlement later may be the likely result of the mediation.

In other words, the mediation may be a stepping stone to settlement.

When sophisticated, dispassionate, participants recognize that settlement at mediation session is unlikely, they may nevertheless wisely appreciate that the session may in fact lay the groundwork for settlement later, and that it is still worth the time being invested in the session.

In this context, wise attorneys use the mediation as an opportunity: to learn as much as they can regarding the other side’s views of the dispute; to evaluate the information presented to them; and then or thereafter to use the information to counsel their clients towards a resolution.

In the mediation, if the participants have an open mind and objectively absorb the conflicting information presented to them by the other side, they may in fact learn that their case may not be as “bullet-proof” as they previously thought or maybe not the “slam-dunk” their clients believe. The likelihood of success at trial may be re-evaluated.  If risk is perceived, then compromise can come although the client might have to “sleep on it” to realize the benefit of settlement.

So, yes, mediation is a process, not an event, and it can be extremely useful and sometimes a necessary stepping stone to settlement.

Consequently, one should never look away from the opportunities presented in a mediation session to understand its true value even if the matter is not settled on the spot.

***

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 .

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Playing Chicken

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Years ago I wrote about “Bravado in Mediation.” In that piece, I wrote:

“Bravado in mediation gives rise sometimes to outrageous demands and counter demands. [¶] Each side wants to impress the other with the strength of its position (ignoring of course its underlying interests, which may be different). [¶] I refer to this sometimes as ‘saber rattling.’” https://karpmediation.wordpress.com/2013/07/18/bravado-in-mediation/ .

I also observed that, in cross-cultural mediations: “[i]ntuitively, and from experience, I see bravado from disputants here that have cultural roots in other parts of the world. [¶] I know that people from elsewhere think differently and negotiate differently, and bravado is certainly a large component of the process sometimes.” Id.

I conducted a mediation some time ago, one of many wherein the disputants had come from different parts of the world from me and from each another. During and after this particular mediation, I thought about my article on bravado, but ultimately decided that they were “playing chicken” with one another.

The game of “chicken” has been described this way:

“The principle of the game is that while the ideal outcome is for one player to yield (to avoid the worst outcome if neither yields), the individuals try to avoid it out of pride for not wanting to look like a ‘chicken’. So each player taunts the other to increase the risk of shame in yielding. However, when one player yields, the conflict is avoided, and the game is for the most part over.” See, https://en.wikipedia.org/wiki/Chicken_(game) .

We see our politicians playing “chicken” as they wrestle over taxing and spending, or the debt limit, until they “come down to the wire” (i.e. to the last possible minute) with their decision making.

In the mediation about which I am thinking, there was, as in politics, lots of posturing (and lots of bravado). There was also a short time remaining before trial.

The case did not settle during the mediation session. Each side, I think, was “playing chicken” with the other, as each side continued vigorously to assert its view of the case, and who will win/lose and by how much, without acknowledging (at least to me) the interest-based concepts pointed out to them in private, such as the cost of the litigation, the uncertainty of outcome, the substantial risk of loss to the losing side, and the value of a final settlement, allowing each side to get back to their business and personal lives.

After the close of the session, fortunately for their clients, the attorneys continued to engage with me in concerted efforts to keep the negotiation going via telephone and email. The numbers got closer, but I could tell they were having a hard time getting their clients (a) to acknowledge (even to their lawyers, I think) the value of settlement as against the practical realities they were facing, and (b) to find a way to collaborate, close the gap, and get to peace.

With a gap remaining in the numbers, the lawyers had no choice but to spend intensive time, energy and money preparing for trial.

The case did settle ultimately, which I’d like to think was the result of the mediation, and I was elated to learn that they had “come to their senses” even though it was at the last minute. As with so many, this dispute settled on the proverbial courthouse steps. Also, it was likely on terms that I foresaw and maybe even shared with the attorneys, separately, as a possible outcome.

This was not the optimal result, however, because, in the process of “playing chicken,” each side incurred significant legal expenses that could have been avoided with cooperative, collaborative, negotiation in the pre-trial mediation session a few weeks before.

Nevertheless, with the sword of Damocles (i.e., the trial) hanging over them, they ultimately exercised their business sense in getting to peace, finally getting past the game of “chicken.”

For that I applaud them. With their settlement, they did manage to avoid the risks and costs of the trial itself, and the potential for a disastrous outcome for whichever side might lose.

Settlement is a good thing, whenever it takes place. Trial is a good motivator too. But playing “chicken” is not always the best choice.

One writer thought about it this way:

All of these “chicken games” share some common characteristics: They center around critical issues that must be resolved by a certain time limit [e.g., a trial date]; the principal players have strongly held but very different views about what needs to be done; and neither side wants to compromise. The result is a stare down to see who blinks first, and who becomes the alpha-dog.

When problems are solved in this manner, the outcome is rarely optimal. Without a spirit of compromise and willingness to engage in collaborative dialogue, it is difficult … to explore the full range of options and to be creative about alternative approaches….

[T]he reality is that we all play chicken — with customers or suppliers, other departments, colleagues, and even people in our personal lives. Most of us have strong beliefs or views about how things should be done. When others strongly disagree, a stare down is a perfectly normal human reaction. We all want the other person to blink.

The challenge is to get beyond the stare down; engage in open and creative problem solving; and not let the game of chicken continue indefinitely. If we learned how to do this more often and more effectively in our professional and personal lives, perhaps [we] would begin to understand that the real chicken is the one who doesn’t blink.

See, Ashkenas, Ron. Why Leaders Play Chicken, published July 26, 2011, in the Harvard Business Review at https://hbr.org/2011/07/why-leaders-play-chicken.html .

***

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

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

When it Does Not Cost Much NOT to Settle

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I like to ask three rhetorical questions in mediation:

  1.  How much will it cost to prove you are right (recognizing that each side always believes it is right and the other side is wrong)?
  2.  What if you are right but the judge/jury/arbitrator disagrees with you? (In other words, what if are wrong?)
  3.  What else can you do rather than litigate?

The first question exposes the cost analysis, the second the risk analysis, and the third the possibilities of settlement via mediation.

In this piece, I want to focus on just the first question, the one that gives rise to the cost analysis.

What if the ongoing dispute does not cost that much to continue to pursue?

I can think of three scenarios where this occurs:

  1. Plaintiff has a contingency fee arrangement with his or her attorney, such that there is not much out of pocket cost to start or continue the lawsuit.
  2. Defendant is insured and the insurer is carrying the cost of litigating after whatever deductible the insured has to pay, if any. Again, not much out of pocket cost to continue the fight.
  3. The parties are wealthy enough that the cost of litigating is irrelevant.

Most of my practice concerns the mediation of real estate cases or business cases where the litigants are actually paying (or obligated to pay) their attorneys who charge on an hourly or similar basis. There, the cost of litigating is a real concern.

Mostly, those disputants can perceive that the cost of litigating just might not be worth it and they can save significant monies if settlement occurs.

Sometimes, they perceive that the money they would spend on the problem could be used instead on the solution.

Sometimes, they nevertheless misperceive the opportunity for settlement because there is an attorneys fee provision in the disputed contract and they think they will get all their money back.

Upon examination of these issues, the parties sometimes can really see the financial benefit of settlement, if nothing else, and they work toward a compromise that both sides can live with.

On the other hand, when money is no object – as the idiom goes – making sense of the situation is more difficult for the disputants and unrealistic assessments for settlement can sometimes result.

Suppose the following hypothetical (and not so unusual) situation:

An early mediation takes place. Plaintiff has a contingency fee arrangement with her attorney.  Defendant and his attorney have an insurer to rely on for the cost of litigating and so forth. An exchange of demands and responses ensues. To the Defendant, Plaintiff’s first demand seems astronomically high. To the Plaintiff, Defendant’s first counteroffer seems absurdly low. Of course, this gets them nowhere. They are each insulted by the other – no surprise there – and the mediation ends soon thereafter without resolution simply based on the numbers.

Of course, other underlying interests might be considered if they are willing to focus on them: privacy, personal and business reputations, opportunity costs, risk of losing vs. certainty and finality, etc. But these interests all take a back seat in their analysis inasmuch as they each perceive a nearly free ride to engage in the lawsuit, which they see as a huge benefit so they can “have their day in court.”

They are willing to roll the dice because it doesn’t cost that much to do so and they can take their chances.

This is a situation I see from time to time. Nevertheless, as a mediator, I believe in self-determination and do not judge the parties’ choices. It is their decision to make.

Here’s the take-away however:

If they are so driven by the potential financial upside of low cost litigation, and not open to other considerations, they may ignore any potential benefits of resolving the dispute and saving themselves from the aggravation, time consumption and uncertainty of the outcome.

Frank Zappa supposedly said: “A mind is like a parachute. It doesn’t work if it is not open.”

I would add, sometimes the checkbook needs to be open too.

***

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

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

At the heart of the new Texas Anti-Abortion Law: A First Amendment Establishment Clause Assessment

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Putting aside the US Supreme Court’s recent inaction in staying its enforcement pendente lite, Texas Senate Bill 8, also known as the “six week abortion ban” ( https://www.texastribune.org/2021/05/18/texas-heartbeat-bill-abortions-law/ ) has been much in the news lately as a Democrat vs. Republican or liberal vs. conservative battle (see, e.g., https://www.reuters.com/world/us/us-house-speaker-pelosi-pledges-action-bill-response-texas-abortion-law-2021-09-02/ ).

However, at the heart of SB 8 [no pun intended, well, maybe just a little bit], this writer sees the motivation of the statute as one of religious belief instead. This appears in the “Legislative Findings” and “Definitions” portions of the bill. See, https://legiscan.com/TX/text/SB8/id/2395961 . For instance:

“Texas has compelling interests from the outset of a woman’s pregnancy in protecting … the life of the unborn child” (Sec. 171.202(3)); and

“‘Unborn child’ means a human fetus or embryo in any stage of gestation from fertilization until birth.” (Sec. 177.201(7)).

To this writer, the statute appears to codify the question of “when life begins” in favor of the Christian belief that life begins at conception.

Citing the Catechism of the Catholic Church, Wikipedia suggests: “The Catholic Church states that its opposition to abortion follows from a belief that human life begins at conception and that ‘human life must be respected and protected absolutely from the moment of conception’.” https://en.wikipedia.org/wiki/Christianity_and_abortion  .

The Catechism of the Catholic Church adds: “From the first moment of his existence, a human being must be recognized as having the rights of a person – among which is the inviolable right of every innocent being to life.” https://web.archive.org/web/20111008122958/https://www.vatican.va/archive/ENG0015/__P7Z.HTM#-2C6 .

However, this clashes with the beliefs of Judaism, for instance:

“Jewish law does not share the belief common among abortion opponents that life begins at conception, nor does it legally consider the fetus to be a full person deserving of protections equal those accorded to human beings. In Jewish law, a fetus attains the status of a full person only at birth. Sources in the Talmud indicate that prior to 40 days of gestation, the fetus has an even more limited legal status, with one Talmudic authority (Yevamot 69b) asserting that prior to 40 days the fetus is “mere water.” Elsewhere, the Talmud indicates that the ancient rabbis regarded a fetus as part of its mother throughout the pregnancy, dependent fully on her for its life — a view that echoes the position that women should be free to make decisions concerning their own bodies.” https://www.myjewishlearning.com/article/abortion-in-jewish-thought/ .

In this writer’s view, where the religious beliefs of one group are preferred over the religious beliefs of another group, the statute preferring one over another is unconstitutional in violation of the establishment clause of the First Amendment.

The US Supreme Court said this in Lemon v. Kurtzman, 403 U.S. 602, 612 (1971):

“The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be ‘no law respecting an establishment of religion.’ A law may be one ‘respecting’ the forbidden objective while falling short of its total realization. A law ‘respecting’ the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion, but nevertheless be one ‘respecting’ that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.”

The Lemon Court then announced a three part test for the constitutionality of a statute facing an establishment clause challenge: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion [citation], finally, the statute must not foster ‘an excessive government entanglement with religion [citation]’.” Lemon v. Kurtzman, supra, 403 U.S. at pp. 612-613.

Here, the “six week abortion ban” appears to lack a secular legislative purpose. Instead it appears to advance a particular religious belief. Moreover, it even appears to foster excessive government entanglement because a court may act to award injunctive and monetary damages including “statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced.”Sec. 171.208(b)(2).  Cf., Shelley v. Kraemer, 334 U.S. 1 (1948) [a court cannot enforce private racially restrictive real estate covenants under the 14th amendment]; McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) [large and readily visible copies of the Ten Commandments in courthouses held unconstitutional].

The “six week abortion ban,” in this writer’s view, thus offends, among others, non-Christians who hold a different view of when life begins, and ultimately offends the First Amendment as being a step that could lead to “the establishment of religion” in the nation.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who sometimes writes about subjects other than mediation. His website is at http://karpmediation.com

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Taking Control of the Situation

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The Coronavirus “delta variant” is surging according to current news reports. Many people are nervous and upset, even scared about it. Some reports say that even vaccinated people can be infected, resulting in getting sick or passing the virus to others, or both. Unvaccinated individuals, news sources say, are at the most risk.

Many are on edge about the unpredictability of the disease and their own safety. They feel as if they are not in control.

To “take control” is to “gain, assume, or exercise the ability or authority to manage, direct, or influence something.” https://idioms.thefreedictionary.com/take+control+of .

Some people seek to take control of the delta situation by having been vaccinated, wearing a mask, practicing social distancing, and so forth, even though they may be tired of these practices after so long a time.

Some will seek to take control by getting vaccinated for the first time.

Some people feel as if they are not in control of their own lives if they are being pressured to vaccinate or wear a mask, and to “take control” they refuse either or both.

All of this brings me to the discussion of “taking control” of another situation:  litigation.

People are not necessarily “in control” of a lawsuit in which they are involved. There is much uncertainty and risk, not unlike the unpredictability or the fear of infection from the delta variant.

In litigation, people cannot control everything, not the opposing side or its attorney, not the judge or jury, not the outcome or cost.

Some ignore the risk, believing in their own infallibility (perhaps like those people who won’t vaccinate or wear masks?).

Some look for other ways to take control.

One way is mediation.

In mediation, a key concept is self-determination. Another is informed decision-making. People can choose whether or not to engage in the process, learn more about their predicament and possible solutions, and make appropriate decisions for themselves as to settlement, if at all, and its terms.

Mediation thus presents the opportunity to take control of the situation, find certainty of outcome and the management of risk and cost. It is, in other words, where people can “gain, assume, or exercise the ability or authority to manage, direct, or influence” something otherwise risky, costly, and uncertain. Ibid.

However, during the pandemic, and considering the spike in the delta variant transmissibilty, that mediation might take place online. That is how this writer is conducting mediations at the present time.

***

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

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Saving a Life, Saving the World: The Mitzvah of an Organ Transplant.

I am writing this on July 21, 2021, because of the importance of the day in my family.

This is a very personal essay, as it is about two of my relatives, both of whom live their lives with menschlichkeit.

Menschlichkeit is a Yiddish word that refers to all the qualities of being a ‘mensch’- a moral and honourable person of good character and who behaves with common decency….” See, https://www.herzlia.com/menschlichkeit/ .

These two young men (both in their late 20s) are third cousins of one another. One is my nephew, the other my second cousin’s son. Both, as boys, were scouts and went with me to Boy Scout Camp. Both, as college students, joined fraternities, like I did, and did well at their respective universities. Both have gone on to advanced learning (like me), one in business management/engineering the other in public policy/law.

Both of them are close to my heart.

Interestingly, both had grandfathers who were Masters of their Masonic Lodges. One is currently a Mason (as I am) and he is the Master of his lodge; the other has not (yet) asked to join.

One has had kidney problems requiring a transplant. The other will donate one of his kidneys today to him.

We measure people by the content of their character. The gift of life to another person, and the others’ grateful acceptance, constitute the measure of each of these two men.

For the donee, I am reminded of the phrase: “Choose life—so that you and your children after you will live” (Deut. 30:15,19). See, https://www.jtsa.edu/choose-life-and-torah

For the donor: “Whoever saves a single life is considered by scripture to have saved the whole world.” Talmud (Sanhedrin 37a), see https://rac.org/blog/save-one-life-save-entire-world-including-yourself

Both of them make me proud for what they go through together.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who sometimes writes about subjects other than mediation. His website is at http://karpmediation.com

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

The Ties that Bind: A Masonic Essay

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Lifelong friendships among fellow Masons are among the goals, privileges and rewards of belonging to a Masonic Lodge. As with any group that meets regularly and frequently, Masons get to know one another well.  These friendships are some of the ties that bind us.

There is no real hierarchy as all Masons treat one another without distinction, regardless of age, background, culture, religion, education, language or whatever.

Masons thus tend to be “on the level” with one another and like-minded when it comes to treating others with dignity, respect, morality, truth, justice and compassion. We have a common goal of philanthropy too. These too are ties that bind us.

At lunch yesterday (my first time inside a restaurant in 15 months), I think I was the oldest there (mid-60s). My children are grown and on their own. The youngest at the table was in his 20s with an infant at home. Across from me at the table was a Mason in his mid 40s who had just returned from a vacation with his wife and young children. Next to me sat a Mason somewhere in between in age. Each of us comes from a different culture and language background. It is no matter; we are friends. Maybe more: we are Brothers.

Our lunch took place after our Lodge’s business meeting. We call it a Stated Meeting. Joining us at lunch were several applicants to the lodge, I am happy to say. And, yes, they too come from different backgrounds, stages in life, business and professions, etc. This was an informal social event, which I so enjoy. We were all getting to know one another better and the applicants were also getting ready to embark on their journey in Freemasonry and in our Lodge, which brings me to another tie that binds us.

Freemasonry is not a religion; neither is it a secret society although we do have our secrets. It is a fraternity. Like all fraternities, our secrets are passed on to new members, like the applicants at the table yesterday, through our degree ceremonies and rituals.

Those ceremonies and rituals are very formal, historical, scripted and serious. They are put on for each applicant, and each applicant is given an opportunity thereafter to review what he has experienced so he can advance through the Degrees of Masonry, enjoy all the rewards of membership, and enrich his life.

These ceremonies create the strongest ties that bind, so much so that when we travel and visit other Lodges across the United States or around the world, we are certain that each Mason we meet has encountered substantially the same ceremonies, had the same experiences, and created the same ties to the Fraternity and to all Masons as we have.

These shared experiences create the instant affinity and friendship among all men who have joined the Masons, and such has been true for hundreds of years.

One of Freemasonry’s traditions is that we do not solicit members or ask men to join. Men must seek membership on their own initiative. Yet, Lodges do provide opportunities for learning about the Fraternity. My Lodge, Clarence F. Smith Daylight Lodge No. 866, is planning an Open House/Information Meeting, to which the public is invited, on September 18,2021, at 10AM at the Van Nuys Masonic Center. For Further information, see https://www.facebook.com/masonicopenhouse . Please feel free to visit and “like” the page if you are so inclined.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who sometimes writes about subjects other than mediation. His website is at http://karpmediation.com

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

On Enriching Interpersonal Communication

One in an Occasional Series of Masonic Essays

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Masons form lasting friendships which allow for improved exchanges of ideas.

Whether or not you liked his brand of politics, his message is both important and probably on point for the vast majority. In his interview on CNN aired on June 11, 2021, former President Barack Obama:

(1) expressed his dismay over the divisiveness in the country;

(2) observed that people with very different views – culturally and politically – largely do not speak or listen to one another, and most importantly;

(3) suggested that members of local communities find ways to get to know one another, despite their differences, so that their friendship and fellowship will bridge the gap and allow for better communication and understanding.

I found such a place in my Masonic Lodge, where men from very diverse backgrounds can and do meet “on the level” and form lasting friendships despite different points of view.

We do not discuss religion or politics within our Lodge. Yet our fellowship allows us, outside of the Lodge, to have informative, dispassionate exchanges on the topics of the day, even the more controversial ones.

We may not always agree with one another but we respect each person’s right to have and express his opinion without all the vitriol, bombast, or nastiness common on social media and on the street, where “the worst / Are full of passionate intensity” (Yeats, The Second Coming).

Our Lodge is very diverse by age, by cultural and religious background, by language and occupation, by political viewpoint, by personal interest, education and experience. Nevertheless, we meet, in and out of Lodge, with the goals of improving – not spoiling – our relationships and affability with one another.

For 30 years, I have been a Mason, and it has always been such a pleasure, and a relief, to belong to a Lodge and thus to have a place where friendship and fellowship can promote an open exchange of ideas while keeping our passions within due bounds.

One of Freemasonry’s traditions is that we do not solicit members or ask men to join. Men must seek membership on their own initiative. Yet, Lodges do provide opportunities for learning about the Fraternity. My Lodge, Clarence F. Smith Daylight Lodge No. 866, is planning an Open House/Information Meeting, to which the public is invited, on September 18,2021, at 10AM at the Van Nuys Masonic Center. For Further information, see https://www.facebook.com/masonicopenhouse . Please feel free to visit and “like” the page if you are so inclined.


David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who sometimes writes about subjects other than mediation. His website is at http://karpmediation.com

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Helping with Risk Analysis

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I am a mediator not a judge. In mediation I always say that I will not decide who is right and who is wrong. That is not my role.  However, I say, based upon my prior knowledge and experience as a real estate litigator for 25 years and as a real estate mediator since then for 16 years, I may point out some potential issues, privately for one side or another, that may help them with their risk analysis  to prompt an adjustment in their expectations.

Why? Because unless people recognize and acknowledge that there may be some risk, they may proceed headlong into demands and counter-offers, with little or no compromise, which will not get them to the settlement of the matter.

So, sometimes I walk them through some factual and/or legal analysis with their counsel while we are together in a private caucus. But only with their permission first and usually well into our private discussions about how to get the case settled.

I do, however, caution that I am not giving advice on what to do. I will just point out something that needs to be addressed. Then their attorney, privately, can counsel them on what they think should be done in light of the discussion.

In this context, I urge the attorneys for both sides to share their mediation briefs in advance. They often have a handle on any threat to, or potential “Achilles heel” of, the other side’s case which, when revealed, will open the door for my private discussions in caucus about risk.

Usually, but not always, if people perceive and really grasp their risks, they will adjust their expectations accordingly. They may have to give up more on one side, or pay more on the other side, but the risk analysis usually helps the parties toward the essential compromise that leads to resolution.

However, this is only if they can acknowledge the risk and not ignore it due to their own perhaps myopic view of their side of the story.

Ultimately, it takes an open mind for this to work. As Frank Zappa reportedly said, “A mind is like a parachute; it doesn’t work if it is not open.”

If the litigant does have an open mind, and if he or she is receptive to the new or highlighted information, settlement may result.

***

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

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

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