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Hanukkah Complements the Christmas Season Etc.

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Full Title: Hanukkah Complements the Christmas Season: Religious Freedom and the December Holidays. Then there is the issue of commercialism. Another Opinion Piece.

December presents the perfect opportunity to discuss Hanukkah in terms of religious freedom, because that is what the holiday celebrates.

Notwithstanding that we are surrounded now by overwhelming Christmas-themed advertisements, movies, music, specials, and so forth, which can be wearying and seem to overrun our televisions, radios and shopping outlets, nearly everyone acknowledges and appreciates that Christmas has a deeply religious foundation: it celebrates the birth of Jesus, believed by Christians to be the son of God.

On the other hand, Hanukkah, an otherwise relatively minor holiday, celebrates the freedom of religious expression and worship that everyone expects at Christmastime.

Thus Hanukkah complements the celebration of the season, due to its history:

Hanukkah commemorates the rededication of the Temple which was overrun and desecrated by the Syrian king Antiochus Epiphanes in 168 B.C.E. Antiochus converted the Temple, the holiest place for Jews at the time, into a place for the worship of Greek gods complete with altars and idols. He outlawed Judaism and gave the Jews two options: conversion or death. A Jewish resistance movement arose, led by Judah Maccabee, who, with his fighters, miraculously won two major battles, routing the Syrians decisively, after which the Temple was rededicated for its intended religious purpose. Hanukkah means dedication in Hebrew. See, generally, https://reformjudaism.org/jewish-holidays/hanukkah and https://reformjudaism.org/hanukkah-history .

Hanukkah, therefore, stands for the unfettered freedom of religious belief, devotion, expression and worship without restraint, discrimination or oppression. For everyone. This is not to be overlooked whatever religious beliefs one holds.

The Jewish population of the United States is small: it hovers at around two percent (see, https://www.pewforum.org/2013/10/01/chapter-1-population-estimates/ ). So the Jewish community, I think, understands well the commercial fervor of the Christmas season for the vast majority, in consonance and even in dissonance with Christmas’ deeper religious meaning.

On the other hand, such commercialism, which excludes minority interests, can be oppressive and disturbing; and that is not what the season should be about.

Speaking for myself, and perhaps for other Jews, I do not relish the onslaught and din of the commercial Christmas season, which seems always to disregard, diminish, or completely ignore minority interests like mine.

But I do understand and appreciate the deeper religious devotion of my neighbors, colleagues, friends and so forth who celebrate Christmas.

In return, I hope and trust that the larger community (and the advertisers among them) will not lose sight of the observance of Hanukkah as an appropriate and complementary exercise of religious freedom during Christmastime.

In any event, I convey my best wishes to everyone who celebrates at this time of year. Merry Christmas, Happy Hanukkah, Happy Kwanzaa, etc.

***

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 .

*This post is marked “Advertisement” in order to comply with the State Bar’s Rules of Professional conduct if applicable.

Settlement Comes When People Really Want It

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(I am so pleased to bring this to you as my 300th blog post.  Here goes:)

Many people who come to mediation really want to settle their disputes, for good reasons too, but they are not yet ready to admit it when they start.

(Those reasons may include any or all of the following: The dispute may be too expensive to litigate in comparison to the potential reward. The risk of loss may be too great. Reputations may be at stake which need protecting. Future business may warrant it. Health concerns may necessitate it.)

Even so, there is inertia for the settlement out the outset, even vigorous resistance to the underlying (hidden) desire for resolution.

First, people must get over their emotional attachment to the conflict, i.e., let go of their “need to win,” and then ultimately find the right rationale to get them to peace.

An experienced mediator can help with this process, which takes time.

In a recent mediation, one litigant told me that she had been in litigation before and had fought strenuously and successfully for her day in court. Thus, at the outset she said she was eager to proceed with the litigation “at any cost, on principal,” because “she knew she did nothing wrong.” (I hear that a lot.)

Through the course of the mediation, however, which lasted all day, this litigant slowly changed her mind upon coming to the realization that it was in her best interest to settle – it was too expensive to have the fight and it was interfering with her apparently fragile health and well being, among other reasons.

These realizations did not come quickly, however. As is often the case, first there was the catharsis. The angst, outrage, resentment, etc., had to come out first; and it had to be managed, empathetically and patiently, so that the emotional context would no longer serve as an obstacle to compromise and resolution.

Thereafter, getting to peace took time as well, as the litigant examined her own needs, interests and priorities.

Finally, the litigant – who really wanted/needed the settlement – became resigned to the outcome of the negotiation even as she compromised to a greater extent than she anticipated.

The litigant’s necessary pliability in reaching that outcome came from her underlying desire “to get it over with” which had to be coaxed to the surface over the course of several hours.

It was always there, underneath; the litigant just needed some help acknowledging it, which ultimately led to the settlement.

As with others who really want to reach resolution, this litigant ultimately recognized the need – and her desire – to settle.

And she was satisfied with the result.

***

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 .

*This post is marked “Advertisement” in order to comply with the State Bar’s Rules of Professional conduct if applicable.

Reflections on Protecting the Stranger: An Opinion Piece for Thanksgiving

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Thanksgiving approaches this week. It is a holiday celebrated by most if not all Americans.

“George Washington proclaimed the first official Thanksgiving celebration in 1789, when he declared November 26 to be set aside[,] not to be thankful for the nation’s bounty[,] but to give thanks for the newly adopted Constitution. Washington also enjoined people to ‘…unite in most humbly offering our prayers and supplications… beseeching [God] to pardon our national and other transgressions.’” See, http://www.midnightfreemasons.org/2013/11/the-real-first-thanksgiving.html .

Perhaps this Thanksgiving, in addition to the usual gratitude that we express every year, we should also ask forgiveness for our “national and other transgressions,” i.e., for not protecting the stranger, among other things.

Protecting the stranger is an idea embedded in our morality and we are not doing a good job of it. I think of the refugees all over the world and particularly at our southern border. They need our protection too.

This is not a new concept.

In Exodus 22:20, and elsewhere, we read, “You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt.” Plaut, W. Gunther (ed.), The Torah: A Modern Commentary. New York: Union of American Hebrew Congregations, 1981, at p. 597.

Emma Lazarus, in her poem, The New Colossus (1883), inscribed on the pedestal of the Statue of Liberty (which she called “Mother of Exiles”) wrote: “Give me your tired, your poor, / Your huddled masses yearning to breathe free, /The wretched refuse of your teeming shore, / Send these, the homeless, tempest-tost to me.” Kolatch, infra, at p. 271.

Hermann Cohen, a German philosopher [1842 – 1918], reflected:

“The stranger [is] to be protected, although he [is] not a member of one’s family, clan, religion, community, or people; simply because he [is] a human being. In the stranger, therefore, man discover[s] the idea of humanity.”

See, Kolatch, Alfred J. Great Jewish Quotations. New York: Jonathan David Publishers, Inc., 1996 at p. 93, quoting from Richard Schwartz’s Judaism and Global Survival (1987).

Indeed, NOT protecting the stranger is antithetical, even offensive, to our humanity.

As the American Civil Liberties Union (ACLU) suggests for a current situation:

“Our immigration detention system locks up hundreds of thousands of immigrants unnecessarily every year, exposing detainees to brutal and inhumane conditions of confinement at massive costs to American taxpayers. Recently, mothers and children, who are mainly asylum seekers fleeing violence in Central America, have been detained in family detention centers. [¶] The “lock ’em up” approach to detention is contrary to common sense and our fundamental values. In America, liberty should be the norm for everyone—and detention the last resort.” See, https://www.aclu.org/issues/immigrants-rights/immigrants-rights-and-detention

This year, at Thanksgiving and as Washington proposed, perhaps we will “‘…unite in most humbly offering our prayers and supplications… beseeching [God] to pardon our national and other transgressions’[as above]” (http://www.midnightfreemasons.org/2013/11/the-real-first-thanksgiving.html ), while also giving thanks for family, friends, good health, and such prosperity as will enable us to do something, directly or indirectly, for those oppressed strangers and others who are less fortunate.

I realize that some of my friends and colleagues do not take kindly to the ACLU, and that is their prerogative.  Nevertheless, my own action plan this Thanksgiving is to make a donation to the ACLU, which allows me to give thanks as well for our Constitution, as Washington also suggested (id.), and to preserve Hermann Cohen’s idea of humanity.

I also want to wish you, the reader, a Happy Thanksgiving as you ponder for yourself whatever you can do to give meaning to the holiday.

***

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 .

*This post is marked “Advertisement” in order to comply with the State Bar’s Rules of Professional conduct if applicable.

To Kibitz, To Quip, To Settle.

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In mediation, I like to kibitz. To kibitz is “[t]o socialize aimlessly…[t]o carry on a running commentary” See, https://jel.jewish-languages.org/words/258 , citing to The New Joys of Yiddish, by Leo Rosten and Lawrence Bush (New York, 2003[1968]).

Kibitzing helps to “break the ice” at the outset of mediation (and at other times). It helps people feel more at ease. I think it works, although infrequently I am asked to get on to the business at hand.

Kibitzing helps to make a connection with others. This is such an important first step.

Sometimes out the outset, I ask about their business life. Sometimes I ask, “what do you do for fun?” Sometimes I ask about their kids or anything else that comes to mind to build some commonality between us.

With mediation being so stressful, this is a way to help people loosen up a little as the mediation gets underway.

But it’s more. This is what Fisher and Shapiro call “building affiliation” in their book entitled beyond reason: Using Emotions as You Negotiate. New York: Penguin Group, 2005-6. They say:

“As a core concern, affiliation describes our sense of connectedness with another person or group. It is the emotional space between us and them. If we feel affiliated with a person or group, we experience little emotional distance. We feel ‘close’ [¶] When we feel affiliated with one another, working together is easier.” Fisher and Shapiro, supra, at pp.53-54.

I recall conducting a mediation one time with a woman recently widowed. She was so distraught and couldn’t focus, I didn’t know how to start. So, I asked her to tell me about her husband. With that question, I brought him into the room with her and me. After a pause and a deep breath, she embarked on an impromptu eulogy after which she relaxed enough to focus on the dispute and its settlement. In other words, “we felt ‘close.’”

In other mediations, later in the session, I have “quoted” someone or quipped about something else, but in a congenial way, to make a point. It’s still part of the kibitzing as I see it.

And it’s more: it’s a way of helping others hear and appreciate my message. Fisher and Shapiro, supra, at p.49.

Recently I referred to something Voltaire once reportedly said, to make the point that continuing the litigation, instead of settling the dispute, might not be such a good idea. According to a book on my library shelf (Leo Rosten’s Carnival of Wit. New York: Dutton, 1994) Voltaire said this:

“I was never ruined but twice in my life: once when I lost a lawsuit, and once when I won one.”

The litigant chuckled but got the point.

Another time late in a mediation session, I quipped about Woody Allen when the litigant was faced with deciding whether or not to accept that very last and final offer and settle. I said something like, “Well, maybe let’s think about Woody Allen. He once suggested, ‘Take the money and run.’”

Again, the disputant chortled but got the point.

Settling is difficult. These quips, the kibitzing, the banter, and the friendliness and camaraderie that I try to communicate, all help, I think, to ease the disputants into a settling mood and to overcome the emotional resistance to negotiating the end of the dispute.

At least, that’s my hope as I kibitz and quip my way through the session.

***

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 .

*This post is marked “Advertisement” in order to comply with the State Bar’s Rules of Professional conduct if applicable.

Picking up after the Mess

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It’s autumn, which is also called “fall” for a reason.  Everything is falling in my backyard and making a mess of it, especially when the wind is blowing.

Each leaf and twig is there to distract and disturb me as I think about the clean up.

The timing may not be right, however, and I may not be in control, especially if the weather forecast is predicting, or we are experiencing, yet another one of those Santa Ana Wind events.

Ultimately, the weather calms, it’s the right time, and I can clean up the mess, which I did today.

Disputes are messy, too. Not from leaves or twigs as in my backyard but from having those strong emotions that come from conflict: anger, resentment, remorse, retribution, fear, anxiety, embarrassment, etc.

You know, all the things that keep you awake at night.

As William Butler Yeats famously wrote, “[t]hings fall apart”.

Moreover, one is not always in control, especially if litigation is pending or impending.

Estimations from attorneys about what will happen, or when, or the cost, or the outcome, are as unpredictable as the wind. Further, one simply cannot control the other side in litigation, and worse, as to the judge, jury, or arbitrator, each is equally unpredictable and worrisome.

Every possible argument or explanation swirls in the mind with endless preoccupation, distraction or obsession as one imagines what the future will bring vis-a-vis the dispute.

What to do? Well, as I did with the back yard today, find the right time and clean up the mess:  Mediate in a calm, private space where you can take control, manage those messy emotions, and avoid the looming risk and uncertainty of outcome.

It is not easy to mediate.  It takes commitment, respect for the other side (even if they don’t deserve it), listening, compromise, thoughtful consideration and reflection about the benefits of resolution, and a willingness to let go of the conflict. All these things and more.

But it’s worth it. It’s like doing something about the backyard and letting go of the distraction or dismay of having to clean it up again when the wind blows and the trees drop their leaves and twigs.

And one feels better afterward.

***

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 .

*This post is marked “Advertisement” in order to comply with the State Bar’s Rules of Professional conduct if applicable.

Turning Back the Clock or Setting it Ahead

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Last night Daylight Savings Time ended and we turned back our clocks one hour. Today, my wife and I awoke early but after daylight, unlike yesterday. Tonight it will be dark before dinner.

We have a new perspective on the day.

In mediation, our goal as mediators is to help the disputants change their perspectives, too, but about the conflict, to help them move toward peace.

This may involve changing the time.

As if we were setting back the clock, we can ask: “What was it like for you and him/her/them before the dispute arose?” and “Wouldn’t it be nice/good/helpful/beneficial to have that feeling again?”

As if setting the clock ahead (in the springtime), we could ask: “What would it be like for you to wake up to a new day AFTER the conflict has ended?”

(Of course, some people don’t want to give up the all-consuming fight, or they will have nothing to fill their day or talk about, so we have to test the waters on this potential outcome.)

Nevertheless, in asking these questions (if appropriate), we hope that the litigant will foresee or at least consider the possibility of experiencing some sense of tranquility, without the angst of the fight in which he or she is engaged.

If so, these kinds of questions might help to refocus on what can be regained after making a settlement which provides some relief and resolves the dispute.

***

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 .

*This post is marked “Advertisement” in order to comply with the State Bar’s Rules of Professional conduct if applicable.

Everything in its Time

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Prof. Abdel Salam Majali, is a former Prime Minister of Jordan. He has been a Professor of Medicine, University of Jordan, since 1973.  Currently, Prof. Majali is President of the World Affairs Council (Jordan), member of the the InterAction Council (which is a club of former heads of state) and President of the Islamic World Academy of Sciences (IAS). See, https://www.iasworld.org/prof-abdel-salam-majali/ .

When asked how soon peace would come after King Hussein of Jordan announced that he would meet in Washington, on July 25, 1994, with Premier Minister Yitzhak Rabin of Israel, Majali said this:

In Arabic, we say, “He who hastens things before its time, God will prevent him from having it.” Not to try to push things before it is time. When it is time, it is right. It is delicious, it is good. If it is before its time, if you eat the apple before its time, you will get tummy cramps.”

Kolatch, Alfred J. Great Jewish Quotations, Middle Village, NY: Jonathan David Publishers, Inc. 1996, p. 304.

This is such good advice for us mediators and those with whom we mediate.

We mediators, I tell myself, should not jump the gun when someone inquires of our mediation services. If we are to be selected for the mediation of a particular dispute, we should wait a time with patience. They will get back to us if not pressured, or not, inasmuch as we all know that everyone, on all sides of the dispute, must first agree to our engagement, plus where and when the mediation will take place. When I am chomping at the bit because I was just contacted with an initial inquiry, I do my best to hold back. And I keep reminding myself not to rush things (although sometimes a follow-up email is welcome).

In a mediation, sometimes I must remind others not to rush things either. In my experience, some mediations do not resolve in the half-day-or-less time limit that attorneys or their clients may impose (often because of the perceived expense of the mediation or their own pessimism about the outcome).

Sometimes I need to say that “mediation is a process and not an event,” something we mediators are all taught; it takes time for the magic of mediation to ease the emotional or financial barriers that may present themselves. Or, it may take reflection or maybe further negotiation following the mediation session in order to get to peace.

Moreover, if the mediation has been scheduled too soon in the course of litigation (due to pressure from a judge, for example), it may not resolve then and there and instead cause renewed acrimony and more vigorous litigation activity. Thus, sometimes later is better. We mediators actually have a word for this: “ripeness.” Just like in the case of Professor Majali’s apple, above.

Sometimes, as we are also taught, the right move at the wrong time is the wrong move. The parties/counsel sometimes want to get to the negotiation right away or to announce their “bottom line” too soon. And with all due deference to them, we mediators must sometimes try to hold them back; there is so much more to do first.

So, Prof. Abdel Salam Majali was correct when he gave the response quoted at the outset of this piece:

Timing is everything in mediation (as in life).

***

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 .

*This post is marked “Advertisement” in order to comply with the State Bar’s Rules of Professional conduct if applicable.

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