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Prevention and/or Preparedness

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The refrigerator malfunctioned on Thursday. It was too big and bulky for me to move to unplug. So it remained “on.” We called the appliance guy who agreed to come on Friday, the next day.

That Thursday night I didn’t sleep well. I worried all night that the malfunction would cause a fire in the kitchen below us.

That’s when I realized that, upstairs where the bedrooms are, there really isn’t a good escape route if a fire breaks out downstairs.

And that’s when I finally realized that we needed an escape ladder that we could hang out the window if there were a fire or other emergency.

The next day the refrigerator was fixed and I have since ordered and received the escape ladder. It sits in a box under our bedroom window.

Fires are particularly scary for me (and for nearly everyone), and also really dangerous.

I obtained the escape ladder to “Be Prepared” . . . although better late than never.

I also have this theory that, if we are prepared for the worst, we can magically prevent the worst from happening.

So, obtaining the escape ladder was a preventative measure, too.

Hopefully we will never have to use it.

As Ben Franklin reportedly wrote, “An ounce of prevention is worth a pound of cure.”

That night – when I worried rather than slept – I was also reminded that people involved in disputes spend sleepless nights as well. They worry about the litigation in which they are involved, its cost, its risk, its effect on personal, family, and business life and so much more.

So, in mediation, I not only talk about ending the worry and the sleepless nights that result, but I also talk to people about prevention by asking “How will you protect yourself from something potentially worse happening?” or words to that effect.

When I add the following phrase, reportedly from Voltaire, sometimes I can get people to think about settling rather than litigating, to avoid the risks and the financial, emotional, and opportunity costs of not settling.

Voltaire reportedly said: “I was only ruined but twice: once when I lost a lawsuit, and once when I won one.” Rosten, Leo. Leo Rosten’s Carnival of Wit. New York: A Dutton Book, 1994. Print. p 273.

If settlement results from these efforts, great! The worst may have been avoided.

If not, maybe they are better prepared – having considered risk and cost – the next time the discussion of settlement arises. And maybe then they can and will avoid the conflagration or other destructive outcome they were facing.


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.

Knowing Whether and When to Say Yes

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Now in my 16th year of full time mediation practice, I have witnessed many negotiations. Many have resulted in settlements. Some have not.

Oftentimes, it becomes a question of whether and when to say yes.

Speaking of questions, here are some that are worth thinking about as the negotiation progresses:

Under the circumstances, is the other side desperate to settle at whatever cost? Are you? Do they have a palatable alternative to settling at this time? Do you? Are they so wrapped up in the dispute itself that they are not able to compromise further? Are you? Have they (or have you) misinterpreted the strengths and weaknesses of the case?

Of course, negotiation is fraught with uncertainty. And it’s difficult to interpret often ambiguous messages from the other side.

Some messages are not so ambiguous however; they just have to be interpreted with some intuition.

There are signals that suggest that it may be time to start thinking about when and whether to say yes.

In the exchange of offers, you might be seeing progressively smaller intervals or changes. That can be a signal that the offeror is aiming toward a certain ending point or even nearing the end.

Or maybe there’s a greater length of time between offers. That’s another signal.

These are fairly elementary and may be bluffs nevertheless, so it’s still a guess.

Sometimes there’s more clarity for one to consider:

“This is my last and final offer.” Or,

“Here’s my offer; I have one more move to make.” Or,

The mediator might say something privately like: “You might not have the perspective I have gained from being in the other room. It’s pretty tense there and they are expressing exasperation; they may even be getting ready to walk out. You might consider how you should respond if you really want to make this deal.”

Or,

“Is there a better time than now to close this deal?”

At bottom, it’s still really educated guesswork on whether and when to say yes.

In The Art of Negotiation: How to Improvise Agreement in a Chaotic World by Harvard Business School Professor Michael Wheeler, the author suggests a few nuggets of advice (p. 200) [Wheeler’s suggestions are in bold]:

Take care not to push too far. He says, “The only way to know how far you can go without exploding the deal is by going a little farther than that.” But … “When someone hands you a tasty piece of cake, with rich frosting to boot, think twice about asking for sprinkles on top.” Id. at pp. 185-186

Pick the right way to say yes. Wheeler has several suggestions about this, it’s worthwhile reading. In my experience, I have communicated “the yes” a few different ways. “You have settled your case, congratulations.” Or “they appreciated that you went that extra step and said yes.” Or, “We have a conditional yes. They say yes to the number if that sum can be paid within X days.” My take: be congenial and appreciative but don’t grovel.

When others say no, probe for the underlying reason. Self-evident.

Anticipate last minute blow ups. One suggestion by Wheeler: hold back something in reserve that can be thrown in to close the deal. My suggestion, depending on the circumstances: get the deal documented and signed then and there before people can back off. Or, if the negotiation has been long and drawn out and people are truly exhausted, maybe close the deal after people have had time to refresh themselves.

To conclude a negotiation smoothly, begin that same way. My take: work collaboratively throughout the negotiation, understand as best you can the other sides motives and constraints as well as your own, and intuit what you can from the cues communicated in the negotiation.

Finally, take care not to overdo it.


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.

Look at My Virtual Background to See the Forest Not the Trees

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Now that I am a Zoom maven, I have selected a few virtual backgrounds to share.

From several pictures, I sometimes share an image of sailboats moored in a harbor so I can say, “it seems to me we are not going anywhere with this discussion” or words to that effect.

I also have a beautiful picture of a grove of trees that I sometimes share so I can ask if we are focused on the trees instead of the forest, in reference to the idiom “cannot see the forest for the trees.”

“Can’t see the forest for the trees” is “[a]n expression used of someone who is too involved in the details of a problem to look at the situation as a whole: ‘The congressman became so involved in the wording of his bill that he couldn’t see the forest for the trees; he did not realize that the bill could never pass.’” https://www.dictionary.com/browse/can-t-see-the-forest-for-the-trees

Some other examples of this idiom, not seeing the forest for the trees, follow.

In a mediation, the defense attorney might be focusing on very detailed technical defenses instead of the undisputed facts underlying the plaintiff’s claims that arguably create enormous potential exposure, high risk, and tremendous expense for the client if the matter does not settle.

Or, the Plaintiff’s attorney might be so wrapped up in arguing that her Buyer-client was so defrauded by the Seller’s alleged nondisclosure that she does not focus on the fact that the market value of the transferred real property was unaffected by the alleged fraud and that there are arguably no recoverable damages.

Or, the attorneys might be so overly focused on debating the law when the underlying needs and interests cry out for settlement to guard against anything worse happening at trial. I have written about this before. See: https://karpmediation.wordpress.com/2013/05/08/the-debate-over-the-law/

If lawyers or their clients get caught up in an endless loop, arguing who is right and who is wrong, any progress toward settlement stalls. There is no movement. It’s as if those sailboats moored in the harbor are not going anywhere.

To refocus on the fact that we are in mediation to attempt to settle the case, not to try it as if in court, mediators like me ask the participants, “What is the ultimate goal here?”

Or we ask to change the course toward making a settlement proposal.

Or we have everyone take a break to reassess their respective negotiation strategies.

Or we remind them that, if they focus on their underlying needs, interests and priorities, and those of the other side, we might still settle without either side convincing the other of the correctness of their own legal positions.

In these ways, among others, the lawyers and their clients may yet see the forest for the trees.

***

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.

What Should Senate Democrats Do in Light of the Power Imbalance, an Opinion Piece

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Unless there is a defection in the ranks of Republican Senators, the current president’s nominee to the Supreme Court will most likely take a seat on the Court soon, despite all of the arguments, drama and passionate intensity to the contrary.

So, what should Democratic Senators do in the upcoming skirmish toward filling RBG’s seat on the bench?

First, I think that the Democrats in the Senate must be realistic. There is a power imbalance here. They are simply outnumbered and the Republican majority will prevail absent a dramatic change of circumstances. They will likely have to concede more than they would like.

Second, I think the Democratic Senators must look for value to themselves in the long run. Their position is weak at present but maybe not so much in the future.

But what value can they create and how? Should they “fight fire with fire?” If they vigorously oppose the confirmation, are they stronger in the minds of their constituents? Or are they “shooting themselves in the foot” if they do so?

If they don’t put up a huge nasty fight, but take a considered dispassionate approach and evaluate and understand the motivations of their Republican colleagues, will they be seen as weak?

Or will they be seen as judicious?

I favor the judicious view. It is a virtual certainty that the nomination will be considered by the Senate and that the Senate will confirm the nominee who will ascend to the Court.

In my view, the Democratic Senators should be well prepared, considerate of the other side and the nominee, diligent, respectful and restrained in their inquiry, and not obnoxious, and understand that, in the words of an old US Marine I once represented when still in law practice, “this may not be the hill to die for.”

It seems to me that there is more to be gained than lost by “going high” in the words of Michelle Obama than “going low.” There will be future negotiations in the Senate in which a concession here may promote reciprocity in the future when desperately needed.

Ultimately, I do not believe that concessions show weakness, when realistically viewed in the light of existing and future relationships and the circumstances of the times. See also, https://karpmediation.wordpress.com/2016/08/24/making-concessions-is-not-losing/

This is so despite the fact that I am appalled by the maneuvering that has gone on to date in leading the Senate to where it is now, that is, with the complete obstruction of Merrick Garland’s nomination then and the recent reversal to accommodate the current nominee.

Of course there will be lasting consequences for a generation or more with the Court potentially tilting to more conservative views, but what else can be done if the Republicans, who have the power, push this?

On the other hand, if there is any truth to the proverb that “you can catch more flies with honey than with vinegar,” the upcoming confirmation process should not be raucous event but dignified as a model of democracy in action. The reputation of the Senate as the world’s greatest deliberative body is at stake, now as before.

Moreover, I have to believe – or I may lose all sanity – that the current nominee if confirmed will approach each case dispassionately, apolitically and areligiously, and instead focus her attention on the merits, on judicial precedent, and on the need for stability in our legal system.

***

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.

A Presentation on the Constitution for the Lodge

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Every once in awhile, I do something for which I’d really like to give myself a pat on the back.

That’s what happened last night, and I’m still stretching over my shoulder, figuratively speaking, for the congratulatory tap.

Last night, I gave a presentation about the U.S. Constitution, including some individual rights in the Amendments and certain illustrative Supreme Court cases interpreting those rights.

I spent many hours researching, preparing and putting together a PowerPoint presentation for the event that was primarily for non-lawyers. (Only one other lawyer participated.)

Below I will tell you why I did this. For now, however, I will simply say that I had a wonderful time both in the preparation and the presentation.

For me, it was like a refresher course in Constitutional Law. After all, I had that course in law school 42 years ago.

And it was a delight sharing with others what I learned back then and relearned for the presentation.

Unlike my experience in law school, in which Con Law was drudgery for the most part, this was a far better experience because I have spent almost 41 years as a lawyer and my interest in the law has only deepened in that time.

Anyway, here’s why I made the presentation:

I am a Freemason and belong to a Lodge of Masons that I like very much. Early this year the Master of the Lodge (like the President of the club) asked me if I would make a presentation about the U.S. Constitution in September. September is designated annually as Constitutional Observance Month by the Grand Master of Masons in California, because of the integral association of Masons with the formation of our republic so long ago.

I agreed and undertook the challenge to prepare something of interest for my Lodge Brothers. They are a diverse group of men with whom I have formed deep and lasting friendships notwithstanding our differences in culture, religion, age, educational and work experience, and so forth.

The presentation was last night via Zoom and was enjoyed by all, including me as I have written above.

In a time of social isolation because of the Coronavirus pandemic, an opportunity such as this one was not only welcome but cherished for the intellectual stimulation, the engaging discussion, and the warm reception for the subject matter of the presentation.

As one of my Lodge Brothers remarked, “it was great.”

Enjoyable too, as you can tell.

***

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.

High/Low Agreements and Voluntary Expedited Jury Trials

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I had the opportunity the other day to be creative by recommending a high/low agreement to be used if the parties in that day’s mediation could not find sufficient common ground to make a settlement.

We were in a traditional mediation that was ending without a settlement that day. The two sides were still very far apart in their offers and counteroffers after many hours and they were not really inclined to compromise any further, which, of course, is their prerogative. (Parties do not have to settle at mediation if they choose not to do so. Such self-determination is a central part of the mediation process. See, e.g., Rule 3.853 of the California Rules of Court at https://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_853 .)

Ever a proponent of dispute resolution by voluntary means if possible, I recalled that trial is the ultimate dispute resolution process and that the procedures for voluntary expedited jury trials (Code Civ. Proc. § 630.01 et seq.) bring a new twist or opportunity to make trials simpler, faster and less expensive.  For a fuller explanation of the voluntary expedited jury trial process (“VEJT Process”), see https://www.courts.ca.gov/12774.htm .

I frankly do not know if anyone actually utilizes the VEJT Process although it has been on the books since 2011. But the high/low agreement is a flexible and useful part of it.

The high/low agreement can also be used in arbitration, separately or even in conjunction with mediation.

The high/low agreement has a specific benefit in that it protects both sides from the worst outcome, the all or nothing-at-all outcome, that parties face going to trial or arbitration in a significant money dispute.

Here is the definition of a high/low agreement from the VEJT process:

“‘High/low agreement’ means a written agreement entered into by the parties that specifies a minimum amount of damages that a plaintiff is guaranteed to receive from the defendant, and a maximum amount of damages that the defendant will be liable for, regardless of the ultimate verdict returned by the jury. Neither the existence of, nor the amounts contained in, any high/low agreements may be disclosed to the jury.” Code Civ. Proc. § 630.01(b).

In a mediation, or even in other dispute resolution discussions, parties try to find a settlement number that both sides can agree upon. But they don’t always agree. The plaintiff may go to its lowest number, its “last and final” and the defendant may go to its highest number, its “last and final.” And the numbers may be far apart sometimes.

When that happens, those numbers might form the basis of the high/low agreement, for use in the VEJT process, or even in an arbitration.

Again, such an agreement may avoid the worst outcome for either side: There is a ceiling that limits the risk for the defendant if the defendant “loses” and there is a guaranteed recovery for the plaintiff even if the plaintiff “loses.”

That might represent the best outcome the parties can achieve from their negotiations if they haven’t otherwise settled their dispute and if they need a determination from the court or an arbitrator.

Incidentally, the VEJT process also allows for further negotiated agreements to simplify the trial, and these can be negotiated as well in mediation or in settlement discussions between the two sides. See Rule 3.1547 of the California Rules of Court at https://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1547

I do not know if the parties in the recent mediation discussed at the outset will utilize the high/low agreement idea; “the jury is still out” so to speak.

But it is a valuable tool in the toolbox of dispute resolution professionals nevertheless.

And it is worth keeping  in mind when the parties become inflexible.

***

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.

Respect

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Occasionally, as I did today, I look to a weekly Torah portion for inspiration about what to write. This sometimes triggers the recollection of something in my mediation practice that is worth discussing. Today’s post is the result of just such an exercise and “respect” is the word that came to mind from this confluence of thought.

The Torah portion, Va’etchanan (Deuteronomy 3:23–7:11), which I read this morning, repeats the so-called Decalogue, the Ten Commandments, which calls for respect in many ways: for G-d and the Sabbath, for truth, for parents, for life, for monogamous family relations, for others’ property, for satisfaction with one’s own lot in life, etc. I will leave it to rabbinic scholars to discuss the fullest meaning and interpretation of the Decalogue.

Yet, there is a custom about the reading of the Ten Commandments that is worth noting and sprang to mind for today’s purposes:

The congregation rises in respect when the Ten Commandments are read from the Torah.

In in-person mediations (which took place before mid-March of this year), I would try always to rise to greet a person entering the conference room. Today, with Zoom mediations that is not practicable, but I do try to give respect by saying that I will listen to all of the parties, empathize with them, help them to understand their predicaments and possible solutions, and respect their decisions (whether or not they settle).

Here, however, is the recent incident that came to mind today as I was thinking about “respect” in mediation practice:

In a recent conversation with a disputant dithering on whether or not to participate in a mediation, at all, as suggested by her opponent, I helped her to make her own decision by sharing with her the text of Rule 3.853 of the California Rules of Court, which provides:

A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties. For this purpose a mediator must:

(1) Inform the parties, at or before the outset of the first mediation session, that any resolution of the dispute in mediation requires a voluntary agreement of the parties;

(2) Respect 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

(3) Refrain from coercing any party to make a decision or to continue to participate in the mediation

Thus, I gave this individual the respect of sharing our ethical mandate as well as letting her know that her participation is voluntary, as is any decision about whether or not to settle.

And the good news is, that after thoughtful consideration, and knowing some of the parameters of the mediation process, she consented to participate.

She may or may not agree to settle, or on what terms, but I will respect that decision 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.

Risk Tolerance in Mediation

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This morning, an item in newspaper’s advice column – which I don’t usually read – caught my eye as I was folding the page to work on the crossword puzzle near it. (I love crossword puzzles and have written about them before. See, https://karpmediation.wordpress.com/2017/01/12/mediations-are-like-crossword-puzzles/ .)

The advice seeker wrote that, in light of the rampant pandemic, he or she was dithering about traveling out of state for a family reunion. The response quoted the idiom, “better safe than sorry” which suggested that the advice seeker should stay home.

Such advice struck a chord with me, both personally and professionally.

Personally, I recently made a similar decision, regrettably and very sadly declining an invitation for a similar event out of state this autumn, thus choosing safety over the possibility of infection whether likely or not.

Professionally, the response piqued my interest because it suggested the weighing of options, more risk vs. less risk, because risk evaluation comes up in every mediation.

In some instances, people do not focus initially on the risk that they might lose in court or arbitration and their emotional attitude drives the discussion. (“I know I’m right, or “I did nothing wrong;” and “I’m sure I’ll win.”)

To help them refocus on reason, not emotion, I might say something to the effect that “What we do in mediation is simply risk management. We do not know what the future will bring, i.e., what the outcome in court or in arbitration might be. You might be right in your mind’s eye but the judge, jury or arbitrator might disagree with you.”

I might even ask, “how much of a risk-taker are you?” Or, “if you go to Las Vegas, do you gamble there?”

These kinds of questions may lead to the discussion of likelihood of success, the unpredictability of the judicial process, even the possible irritability of a judge, juror or arbitrator, or their subconscious affinity for or dislike of a witness — even the litigant herself — or a position in the litigation.

And I sometimes add, “Your attorney cannot guaranty that you will win, as our Rules of Professional Conduct prohibit it.”

I won’t belabor this, you get the point, but the ultimate goal is to lead people to problem-solving and thus to avoiding the uncertainty and possibly emotionally or financially dangerous outcome if the dispute does not settle.

I do not use the words,“it’s better to be safe than sorry,” however (although I might think it), because each person has a different tolerance for risk.

And I must respect each person’s own risk tolerance in his or her own decision-making.

***

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 and the WorryBug.

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Legal disputes engender worry. Everyone knows this. And everyone worries. Mediation can help resolve worry, but let me first tell you why I write today about worrying.

Then, I will discuss how mediation can help banish the WorryBug.

The subject of worry came up the other day when my wife and I were visiting our three year old grandchild … and  her parents — our daughter and her husband — of course.  We were all wearing masks and socially distancing, shmoozing in the fresh breeze of their backyard.

Certainly there was some level of worry among the adults about the pandemic, which was discussed among us but only a little bit.

The real worry came from our granddaughter. I will call her Ethel. It is not her real name.

(Ethel is an oblique reference to a beautiful film my daughter and I saw and enjoyed together years ago, called Shakespeare In Love. In it, Geoffrey Rush’s character refers to Shakespeare’s so far “unwritten play commissioned [as] a comedy [and] tentatively titled ‘Romeo and Ethel, the Pirate’s Daughter’”.  See, https://www.imdb.com/title/tt0138097/plotsummary . The idea of the play being called “Romeo and Ethel” made us both laugh, a lot, and I have never forgotten our shared experience. So I referred to our granddaughter, in utero, as Ethel, and do so here. But I digress.)

In the backyard the other day, Ethel, in close proximity at first to a tiny baby lizard, got really scared. Then she saw it move on the grass, on the cement patio, and ultimately climb up the stucco wall of the house. Ethel became terribly worried about the little lizard’s safety, and she was audibly and visibly upset.

That is when I heard about the WorryBug. I asked what it is.

It is a character in a delightful children’s book, called Don’t Feed The WorryBug by Andi Green, with which Ethel was obviously familiar. It can be read to you here: https://www.youtube.com/watch?v=JM27Zj04EOM

As Amazon.com describes the book, Wince, the main character is a worrier. “[W]hen Wince starts to worry, his WorryBug appears. At first the WorryBug is small and non-threatening, but the more Wince Worries the more his WorryBug grows. Don’t Feed The WorryBug is great story to start the conversation on worry and anxiety. We all worry, it happens, but the key is to not let those worries aka the WorryBug grow to the point it ruins your day.” See, https://www.amazon.com/Don’t-Feed-WorryBug-WorryWoo-Monsters/dp/0979286042 .

So, how does all of this relate to mediation?

When I conduct mediations, I know people are worried about their predicaments, and we talk about the worry.

They worry about: Will I win or lose? How much will it cost? Will I be ruined by the litigation, financially or emotionally? Will it negatively impact my business reputation? And so much more.

At the root of the worry is uncertainty about the future and the inability to control it. Just like any of us, the disputants do not know what the future will bring, and they lose sleep over it, become anxious, have stomach aches or other debilitating physiological effects. They imagine every possible negative scenario, and so much more.

Even the lawyers worry:  Have I taken the right approach? Will my client listen to my advice? Will I have to take the case all the way to trial? What if I lose? What if I win? Will I get paid? And so much more.

One way to resolve all of that worry and anxiety is to make the uncertain certain.

Mediation provides the opportunity to resolve differences and change all of the terrifying “what ifs” into an acceptable certainty. At the end, with a written settlement agreement, all of the uncertain future risks and costs go away. Everyone knows what the outcome is and understands each person’s benefits and responsibilities going forward. The dispute is no more; there is no more uncertainty.

It is then that the WorryBug no longer threatens to take over their lives and the disputants can go back to enjoyable experiences … like watching “Shakespeare in Love,” which I highly recommend, or other pleasant diversions.

Too, the lawyers can close their files, and move on to other cases not worrying about this one anymore.

And then they can help their other clients to manage their worries, because worry appears in every case.

And then they can bring those cases to mediation, where we mediators can help everyone manage the conflict and its inherent anxieties … and banish the WorryBug once again.

***

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.

Seriously Avoiding In-person Mediations for Awhile

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It will not come as a surprise to anyone that, due to my age (66) and an underlying heart condition, I am extremely concerned about potential exposure to COVID-19.  Consequently I have been conducting only online mediations by video conference in the short term.

Due to recent input (see below), I have had to give much more serious thought in the past few days regarding in-person mediation sessions in the longer term.

In short, I have decided to avoid them and not to conduct them for awhile, at least for the next three months, maybe longer.

As I have written before, I believe that mediation by online video conference is a much better way to go presently. See, https://karpmediation.wordpress.com/2020/06/12/is-mediation-by-video-conference-better-given-the-circumstances/

I am certain that there are others who are less nervous about it, but for me and for my wife, the prospect of my spending more than just a few minutes together with others, in person, especially in a closed conference room with possibly inadequate ventilation, is scary to say the least (not that I think the lawyers or clients are scary – I’m just fearful of contracting the virus.)

According to my daughter, a physician in family practice, “It’s serious, Dad.”

Fortunately, as I have said, I have been scheduling and conducting Zoom mediations in the short term, which the participants seem to find satisfactory, even enjoyable. (Outcome appears, so far, to be about the same as in-person mediations, vis-a-vis settlement or not.)

My worry crescendoed this week, after a request for an in-person mediation, when I reached out to a colleague about his current mediation practices.

He told me that his office is closed to the public and that he has been conducting only Zoom mediations, and will continue doing the same probably through the end of the year.

Shortly thereafter, for further input I contacted the program coordinator of the CALIFORNIA ASSOCIATION OF REALTORS® Real Estate Mediation Center for Consumers (I am on its mediator panel) to see if C.A.R. is still not permitting in-person mediations.

Here is her response:

We advise you check your local news to verify if restrictions have been lifted. Below is our current messaging to our clients.

NOTE- revised 5/26/20: Due to COVID-19 restrictions, in-person mediations may not be permitted at this time and it is uncertain when they will be permitted to resume. In addition, not all parties, counsel or mediators involved in a mediation may be comfortable with an in-person mediation until a COVID-19 vaccine is available. [Most of our panel mediators offer online mediation services via teleconferencing and videoconferencing solutions.] We encourage the parties to consider these services to ensure a timely resolution to their dispute….

Local news is currently reporting a spike in COVID-19 cases and a possible return to stay-at-home orders. See, e.g. https://patch.com/california/encino/s/h68l6/worsening-outbreak-could-cause-return-stay-home-orders.

Also yesterday I read that, in addition to the risk from coughing, sneezing, singing or even talking in close-contact closed spaces, now there is a concern about lingering airborne transmission of the virus in closed spaces.

Finally, just last evening, I learned that Los Angeles Superior Court Presiding Judge Kevin C. Brazile issued a new General Order delaying trials as the COVID-19 pandemic continues unabated, ordering, among other things, that the Court will not set any Civil jury trials to commence before January 2021, although certain Unlawful Detainer (eviction) jury trials will be set to commence on or after October 5, 2020.

So, as you can tell from all of the input I received, I am not comfortable with an in-person mediation, not only in the short term but more likely for a longer term than previously anticipated, at least for the next three months if not longer.

And my wife isn’t comfortable with it either, which I have to respect for purposes of “Shalom Bayit,” i.e. peace of the home.

So, based on the above, I will continue online with Zoom mediations, only, to help attorneys and their clients resolve their disputes which otherwise will continue in suspense based on court unavailability.

And I will avoid in-person mediations at least the next three months, if not longer.

That’s the best I can do under the circumstances.

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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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