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Making Very Difficult Decisions

Imagine a heart patient who does not know she is one. She does not like doctors, hospitals, medicines, invasive procedures, surgery, or the like. She wants no part of any of it, none whatsoever, not under any circumstances. She never did.

Suddenly, with disturbing chest pain, she faces all of it.

Reluctantly she sees her doctor and is given a few increasingly drastic choices: ignore everything and see what happens; try medicine only; have a noninvasive stress test that may prove inconclusive; or have an invasive but definitive angiogram.

For her, this is like going down the rabbit hole and she doesn’t like it one bit.

Consulting a cardiologist, she takes in as much information as she can about the risks, benefits, choices, and possible outcomes, and…

Overcoming her own resistance, she relents and grudgingly chooses the invasive angiogram recommended by her doctor, which turns out to be the right move.

Although in her best interests, it’s precisely what she never wanted at all.

And it was an extraordinarily difficult decision for her to make precisely for that reason.

In the mediation of litigated cases, people face very difficult decisions as well, although maybe not so drastic as the foregoing.

They may arrive thinking that they never will settle. They see only one course of action – they must fight to win — because they are certain they will win.

But their minds can change, as did the heart patient’s, with sufficient information about the costs, risks, and uncertainties of litigation, as well as the benefits, choices and possibilities of settlement, including ending the dispute and finding peace.

Getting good legal advice from one’s attorney helps with deciding what to do.

Actually listening to and learning of the perspectives of all other participants, including the other side, does so as well.

And exploring with the mediator the interests, needs and priorities of all concerned often tips the balance toward a negotiated outcome that may not be exactly what was desired but is nevertheless in the best interests of the settling parties.

And so it is with making very difficult decisions in mediation: the choices may be hard or unappealing (as in the heart patient’s scenario) but being open to changing one’s view, when faced with new input from others, may be beneficial for one’s future and peace of mind.

***

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

Purim and the Fight Against Hate

Purim, upcoming this week, is described as “a thankful and joyous affirmation of Jewish survival against all odds” according to one internet source (http://www.reformjudaism.org/jewish-holidays/purim), where one can find out more about the holiday.

Purim is especially important this year because of rampant Anti-Semitism and other forms of hate currently being spewed throughout our society: in politics, on college campuses, and around the world.

This week, please consider ways in which you too can advocate against hate in its various insidious forms. One way is via the Anti-Defamation League’s website (http://www.adl.org/) where I went this morning to do my part to help change the world.

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David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who believes in social justice and, of course, the fight against hate.  His business website is at http://karpmediation.com .

Attorneys’ Fees: Sometimes an Obstacle to Settlement

Lately, I have seen attorneys’ fees – whether paid, incurred or contingent – becoming more of an issue for disputants in mediation.

I am not criticizing my colleagues at the Bar; rather, I am asking that they be mindful of, and careful about, the possible effect of their attorneys’ fees on the prospect of settlement.

In the real estate and business disputes that come before me as mediator, litigants are usually being charged on an hourly basis, or similar, by their attorneys, and they struggle to pay, or moan about paying, their attorneys’ fees, which can be pricey.

Consequently, if they are the parties seeking money in settlement, they generally want reimbursement of their attorneys’ fees as part of the funds they are demanding to settle.

For the disputants, attorneys fees are a tangible out of pocket cost of the dispute.

However, unless the attorney fees are recoverable by contract or statute, attorneys’ fees are a sunk cost and not something to be yielded at trial, so not usually includable in a mediated settlement.

Even so, if a term of a contract between the disputants provides for reasonable attorneys fees to the prevailing party, there is generally no prevailing party in a mediated settlement, so contractual attorneys fees are not usually includable in a mediated settlement either.

This is why settlement agreements usually contain a provision that “each party will bear his or her own attorneys fees and costs.”

But the litigants don’t like it; they perceive that they have spent too much in and for the dispute, and they want their money back.

Even in contingency cases, the percentage of funds that would go to the attorney decreases the net recovery by the client, and the client doesn’t like receiving less rather than more.

So, there is a delicate balance to be achieved by the lawyers: doing enough lawyering to create the right leverage for settlement without causing the fees to become too large a component for resolution.

If the case is over-lawyered, and yes there are some, the fees become “the tail that wags the dog” which may create an insurmountable obstacle to resolution.

This makes it so much more difficult to help the client settle.

That is, unless the lawyer has prepared the client, early and often, for the prospect that, likely, “each party will bear its own attorneys fees and costs” in the mediated settlement.

***

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 .

Underlying Interests in the GOP’s Latest Obstructionism: An Opinion Piece

Sometimes in mediation, I witness what others might perceive as outrageousness, and I have to wonder what is the goal, the motivation, or the underlying interest, in such behavior.

Such thoughts have occurred to me in the wake of Justice Scalia’s sudden death this past weekend – may he rest in peace – and the GOP’s immediate reaction publicly to threaten election year obstruction of the Constitutional imperatives of the sitting President and Congress, the former to nominate a replacement and the latter to “advise and consent” vis-a-vis the appointment.

Certainly, many see these Republican behaviors as obstructionist, outrageous, and counterproductive by worsening the political divide.

Personally, I am outraged, but that is not the point.

Also, I think Justice Scalia would be outraged as well given his preference for strict construction of the Constitution.

But maybe there is method to the GOP’s madness if one looks at the election landscape.

With there being such disparity, even dysfunction, among the Republican candidates, and their base’s lack of unity, perhaps the GOP’s goals here are (a) to unite the Republican base by whipping them into a collective frenzy over the perceived “danger” from the Supreme Court nominating process this year, and thus (b) to strengthen Republican chances to win in the General Election.

I perceived Senate Majority Leader Mitch McConnell’s reaction, moments after Justice Scalia’s demise was announced, as “knee-jerk” and in poor taste but it’s not up to me to label it.

Maybe there was more to it than that.

Perhaps in the calculus, the cost of public outcry from the Left was determined to be less than the benefit to the Right.

In mediation, there are always risks and benefits to what people say and do in their negotiation.

This may be no different.

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who is also fascinated by the politics of the day. His professional website is at http://karpmediation.com .

Sharing Mediation Briefs

I always ask for a written mediation brief (or mediation statement) when convening and conducting a mediation, and I always suggest that it be shared between or among opposing counsel in advance.

From experience, however, I know that attorneys in the community in which I mediate (Southern California) will, more often than not, send me a confidential brief “not to be shared with the other side” or “for the mediator’s eyes only.”

When that happens, I receive all of this good information, but because it is “confidential” there is nothing I can do with it to help the parties assess their risks (unless I obtain further express permission – which might be grudgingly given later if at all – to share the brief or some of the information in it).

I read all of the mediation briefs that come to me. Most often, there is no reason that I can perceive why any of it should be kept confidential.

Usually, these mediation briefs contain factual statements and legal arguments that the other side really should consider – because it will be different from their own.

Thus, I think it is really helpful for each side to know what the other side perceives about the case in order to assess the attendant risks if that other side prevails.

On the other hand, if there is something truly private, that only I as mediator should know, I recommend a private side letter. See, https://karpmediation.wordpress.com/2014/01/11/being-candid-and-the-almost-never-used-side-letter/

Otherwise, let’s share so litigants, their counsel, and insurers when participating, can know and understand what they might be facing if settlement does not occur.

***

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

Defining Success in Mediation: An Ethical Response

What is the definition of “success in mediation?”

Is it “getting the deal done” or is it something else?

Such a question arises from time to time, in mediation and elsewhere.

Most recently the question arose for me while I was participating in a Continuing Legal Education course on Mediation Ethics.

The tension exists as between the commercial aspect of “getting the deal done,” on the one hand, versus the defining cornerstone of mediation – self-determination – on the other hand.

On occasion, I have heard mediation participants call the mediation “unsuccessful” when the dispute does not settle then and there at the mediation.

When this occurs (yes, parties do sometimes choose not to settle at a mediation if it is not right for them at the time), my response usually goes like this:

“You know, the dispute still may settle but later as a result of the mediation or if circumstances change. If not, I think the mediation was successful nevertheless, in that each side learned more about the other side, about themselves, about the predicaments they face and about the possible solutions. It may be that the chosen solution ultimately is to commence or to continue with litigation; yet, so long as it was an informed decision, to me the mediation was successful.”

My awareness of our ethical responsibilities as mediators forms the basis of this response.

Standard 1.A. of the ABA Model Standards of Conduct for Mediators (2005) provides:

A mediator shall conduct a mediation based on the principle of party self-determination.  Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.

http://www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/model_standards_conduct_april2007.pdf (hereinafter “ABA Model Standards”).

See also, Rule 3.853 of the California Rules of Court [“CRC”] [“A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties.”]

In addition, Standard 1.B. of the ABA Model Standards states, and I think this is important:

A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.

So, defining “success” as “getting the deal done” may not be the best definition.

CRC 3.853 (2) and (3) also say this:

“[A mediator must] [r]espect the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time; and … [a mediator must] [r]efrain from coercing any party to make a decision or to continue to participate in the mediation.”

So, for me, if people have made an informed decision — either to prepare and sign a settlement agreement, on the one hand, or, alternatively, to terminate the mediation and depart on the other hand –, the mediation has been successful either way because the participants have decided for themselves.

Thus I define success in mediation as “informed voluntary decision-making” and not necessarily “getting the deal done.”

Of course, if they settle at the mediation, that is an extra bonus for everyone.

***

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 .

My Cousin, My Friend

I see an image of him every day.
He is in the family picture on the shelf
That I see when I view the nearby clock,
Which is all the time and every day.
He smiles at me with that certain smile
That says, “I am happy and content;
I am with my family.”
Indeed he is, because he is in our hearts.
Maybe it is a smirk on his face which says,
“I know more than you think I know about this or that.”
Indeed he did know;
He was the smartest man I ever came across.
Or is it an expression of amusement,
Or kindness and understanding?
Because he shared all of that with us
And with everyone.
Whatever thoughts he had
When the picture was made,
He continues to share with me,
For he was and is my cousin, my friend,
And my memories of him are timeless.

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