Skip to content

Not My Fault

[Updated from an article of mine written about eight years ago.]

As a real estate mediator, I often conduct mediations of so-called non-disclosure cases. They are a good vehicle, although not exclusively so, for the discussion that follows.

Simply put, in non-disclosure disputes: (1) the Buyer generally claims that the Seller, or others in the transaction, had an obligation but failed to disclose something material about the property, as a consequence of which the Buyer suffered some resulting loss; (2) the Seller contends that the Buyer had its own contractual and legal obligations of due diligence to investigate the property thoroughly and the Buyer failed to fulfill those duties and protect himself or herself; and (3) the Buyer responds by claiming reliance on the Seller to provide the information.

Both Buyers and Sellers contend that they are each blameless and they each blame the other. In this context, each might say, “it’s not my fault.”

In these mediations, and others, I am always interested to hear from one side or the other, “it’s not my fault,” if and when it comes up, as it often does either expressly or implicitly.

Sometimes, I find that the words used by one person to describe the other person actually describe the speaker himself or herself. That is, if a person suggests, “it’s his/her/their fault, not mine,” the opposite may be true and it may actually have been the speaker’s fault, in whole or at least in part.

I am not a psycho-therapist, but I have a sense of the emotional triggers for the “not my fault” statement when made. They, I think, may include any of these or others:

• the Buyer’s no-fault expectations of entitlement to his or her dream home; or
• the Seller’s expectations of entitlement to a no-fault, worry-free and easy sale; or
• some sense of shame or guilt; or
• a fear of the potential for a diminished self-image if shown to be at fault; or
• a need to prove himself or herself right (guiltless); or
• simply his or her inability to accept blame.

Thus, these triggers may cause the person to attempt, through the litigation and in mediation, to shift the blame, knowingly or unknowingly, and thus to bolster his or her own self-esteem. (I am thinking that psycho-therapists may refer to this as scapegoating or narcissism but I cannot speak to that.)

Nevertheless, as a mediator, this takes me beyond the simple facilitative or evaluative approach to conflict resolution.

One of my favorite resources is Kenneth Cloke’s Mediating Dangerously: The Frontiers of Conflict Resolution (Jossey-Bass, 2001). In it, Cloke suggests, among many other things, getting to the heartfelt conversations that lead to introspection, self-honesty, authenticity and a “willingness to explore the conflicts within yourself.” (Id. at 40.)

I have seen this reflection work in mediation to lead to resolution.

But sometimes it won’t work or we cannot get there.

Sometimes the disputant’s own unwillingness to look at himself or herself in the proverbial mirror, or to consider conflicting ideas, evidence or possibilities, or one or more of them, will be an obstacle (and this is not a therapy session anyway).

Or, the lawyer may not want to go there either – perhaps because he or she may be fearful of or inexperienced with this approach or have his or her own control issues with the client or the mediator.

If we cannot explore the disputant’s own emotional contexts or conflicts, then maybe we are left with the evaluative approach in dealing with the “it’s not my fault” litigant.

Many lawyers may want this anyway – perhaps to be validated thereby.

In the more evaluative approach, the mediator becomes “the agent of reality” (a phrase often heard in mediator training courses) to suggest how the case, in his opinion, might possibly turn out if tried.

But here the risk is that the disputant will come to believe the mediator is taking sides and is biased, especially but not only if the analysis differs either from his own belief system or from that of the person’s own lawyer.

On the other hand, if the case does not settle and the disputant does not win, the lawyer can say, “See, the mediator was right,” and

“It’s not my fault.”

***

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

The Unlikely Conflation of Being a Levite and a Mediator

Shavuot is upon us this weekend. It is the Jewish festival marking the giving of the Torah [the Law] at Mount Sinai. See, https://reformjudaism.org/jewish-holidays/shavuot .

One of the customs associated with Shavuot is the study of the Holy Writings. See, https://reformjudaism.org/shavuot-customs-and-rituals . Some will stay up all night for study; others like me will read, reflect, and think, for just a short while. That’s what I felt like doing today in advance of the holiday.

Today, I read, reflected and thought about this week’s Torah portion called Bamidbar which begins the Book of Numbers (Num. 1:1 – 4:20). As I learned from the sources I read (see, e.g., https://www.chabad.org/parshah/article_cdo/aid/517039/jewish/Aliyah-Summary.htm ), the Jews are in the desert and G-d calls upon Moses to take a census. The Israelites and the Tribe of Levi are counted separately. Subsequently, the Levites are appointed, among other responsibilities, to serve in the Tabernacle, guard its vessels and assist the priests with their Tabernacle duties. Id.

I am a Levite. I know so because my father told me so; he knew because his father said so to him, and so forth all the way back into the mists of time.

I am also a mediator, and this is how being a mediator and being a Levite are similar, at least for me.

Here is the thrust of it:  As stated above, the Levites were appointed to assist the priests of the tabernacle. As mediators, our job is to assist the justice system.  That is, “[mediators] are critical to the proper functioning of our increasingly congested trial courts.”  Howard v. Drapkin (1990) 222 Cal.App.3d 843, 858.

Consequently, both mediators and Levites have a special status in their respective roles as assistants, and accordingly, both mediators and Levites are treated differently because of their special status.

  • In traditional synagogues, Levites are called up to the Torah, before some others, for an Aliyah, for the honor of reading the Torah, or giving certain blessings before and after a Torah reading. Also, Levites are exempted from the custom of “redeeming a first born son” [Pidyon Haben] because of their special status as granted in Bamidbar [“The Levites shall be Mine, the LORD’s.” Num. 3:45.].
  • Although completely different in context, mediators are also treated specially, like judges, by being granted immunity from prosecution for assisting the judicial system as dispute resolution professionals.  Howard v. Drapkin, supra, 222 Cal.App. 3d at 851. [“absolute quasi-judicial immunity is properly extended to neutral third persons who are engaged in mediation.”]

Not everyone is both a Levite and a mediator, but for me, being both makes me feel special:  In both instances, I am privileged to assist, either by tradition or in practice, in service for the greater good.

***
David I. Karp is a full time independent mediator of real estate and business disputes in Southern California and sometimes a Maven about Jewish tradition. His website is at http://karpmediation.com .

A Brief Tribute to Moms

Once my mother gave me good advice. It was before my wife and I were married; we were dating at the time. My mother asked me my intentions. I said that I was serious but thought I would wait six months to propose. Her advice: Why wait? Shortly thereafter – only three months after meeting – I did propose and she accepted. That was good advice, Mom. Thanks. Happy Mother’s Day to my Mom, A”H.

Over the next four years, my wife and I began building our marriage and we started a family. Soon will be our 37th wedding anniversary. Happy Mother’s Day to the love of my life.

My wife and I raised two wonderful children, both of whom are now adults and successful in their lives, and one of whom now has a baby of her own. Happy Mother’s Day to my daughter.

Unfortunately, my Mom died young and not long after our second child was born. She loved being a grandmother and she especially loved babies. My mother would have loved being a great grandmother too. I know my wife loves being a grandparent (me too, by the way).

Rudyard Kipling reportedly said, “God could not be everywhere, and therefore he made mothers.” See, https://www.brainyquote.com/quotes/rudyard_kipling_118509 . That was a good idea.

To every person who has, had, was, is, or wants to be, a Mom, Happy Mother’s Day to you as well.

***

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 .

Stop Bigotry

This is an opinion piece. I make no bones about it.

On a day (today) when The Los Angeles Times published on its front page that “Jeff Sessions says the new [immigration] policy also means more children are likely to be separated from their parents,” I received in the mail a request for donations from the United States Holocaust Memorial Museum (USHMM) containing note cards depicting drawings made by a child who was separated from her parents during the Holocaust.

According to USHMM’s accompanying letter, Alona Frankel, now a children’s book writer and illustrator, drew the pictures depicted on the note cards while under the care of a Polish woman, Hania, who was paid to keep her safe during the Holocaust. The letter goes on to state:

“Cut off from her mother and father, she was put to work in a Catholic village, sleeping in a barn among pigs and horses…. As proof of [Alona’s] well-being, Hania would send the drawings to her parents [who were hidden elsewhere] so that they would know that their daughter was still alive and would continue to send money for her protection.”

No matter the circumstances, the idea of separating small children from their mothers and fathers is both outrageous and detestable to me.

The underlying theme, in both Alana’s case, and in the punitive measures announced by Sessions in furtherance of our “zero-tolerance” immigration policy, is the same:

Bigotry.

According to Merriam-Webster’s online dictionary, a bigot is “a person who is obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (such as a racial or ethnic group) with hatred and intolerance.” https://www.merriam-webster.com/dictionary/bigot

Bigotry is what forced little Alona from her family; bigotry is what, in my mind, compels the current Administration to punish with family separation those tired, poor, huddled masses who come to this country yearning to breathe free.

(Yes, there is an argument to be made that the subject families are entering the country illegally, but this is not about legality, it is about inhumanity.)

As a person of Jewish heritage, whose ancestors and family members have suffered prejudice and intolerance throughout the ages, and who is a part of a very small minority in the population of our country frequently targeted by hate groups, I cannot condone and must object in the most strenuous way I can (through my writing) to such inhumane treatment as ripping families apart as a pretext for keeping the country safe.

This is why, too, I have a bumper sticker on my car that says “Stop Bigotry.”

***

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

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 .

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 .

%d bloggers like this: