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A Fresh Start for 2020.

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I like the idea of a fresh start at the beginning of the new year.

I first learned about the phrase “fresh start” in a law school course in Debtor-Creditor Law in which we were studying the then new Bankruptcy Code that was going into effect.

When I think of a fresh start for the new year, however, I am not talking about bankruptcy for anyone.

To me, having a fresh start for the new year is looking forward to “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting [circumstances].” See, Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934).

A similar idea is “wiping the slate clean.”

According to one online dictionary, “If you wipe the slate clean, you decide to forget previous mistakes, failures, or debts and to start again.” See, https://www.collinsdictionary.com/us/dictionary/english/to-wipe-the-slate-clean .

To me, having a fresh start or wiping the slate clean for the new year are good ideas for optimistically looking ahead to personal growth, health, happiness and good fortune.

These are also good ideas to mention in mediation.

That is, it is good to look ahead and not behind, to see the upside of a settlement which allows for new opportunities for growth, health, happiness and good fortune, “unhampered by the pressure and discouragement of preexisting [circumstances].” Local Loan, supra, 292 U.S. at 244.

To that end, I wish my readers a Happy New Year and a fresh start for a promising future in 2020.

With kind regards,

David.

***
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.

Hindsight is 2020

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I am probably not the only one, thinking of the end of this year and the beginning of next year (2020), to recall the phrase “hindsight is 2020.”

Although idiomatically, the phrase may refer to the idea that “one is able to evaluate past choices [afterwards] more clearly than at the time of the choice,” (see, https://en.wiktionary.org/wiki/hindsight_is_20/20#English), I think of the phrase a little differently.

The way I see it, the phrase asks a question: “Did I do the right thing at the time?”

I think people ask this question of themselves often, either at or after a mediation.

The obvious choice in mediation is whether or not to settle at the time.

Was it the right thing to do to get up and leave without a settlement? In some cases, the answer was yes. See, https://karpmediation.wordpress.com/2011/06/29/sometimes-walking-away-is-ok/ .

Was it the wrong thing to do to leave the bargaining table which might not have been the best choice, but happened anyway? See, https://karpmediation.wordpress.com/2016/09/03/doing-things-we-do-not-like-to-do/

Was it the right thing to do to change one’s mind and settle although difficult at the time? See, https://karpmediation.wordpress.com/2016/04/05/making-very-difficult-decisions/ .

Was it a good idea not to bring an important decision-maker who second-guessed the decision later? See, https://karpmediation.wordpress.com/2012/05/26/the-monday-morning-quarterback/ .

Or, in hindsight, was it ultimately right to settle and experience that sense of relief in having done so? See, https://karpmediation.wordpress.com/2017/04/24/that-great-sense-of-relief/ .

Sometimes, later, people rue the day they gave ground to settle … or did not do so. See, https://karpmediation.wordpress.com/2014/10/02/it-is-very-hard-for-people-to-give-ground/ .

Sometimes, people just never could figure out what they wanted and derailed the negotiation. See, https://karpmediation.wordpress.com/2014/06/19/expect-the-unexpected-everything-is-a-strategy/ .

And sometimes, people were too emotional to make sense of the day. See, https://karpmediation.wordpress.com/2013/07/06/litigation-violence-when-emotion-overcomes-rationality/ .

And finally, sometimes all of the ingredients for settlement were in place, and resolution was not only possible but welcome, even afterwards. See, https://karpmediation.wordpress.com/2014/07/26/all-of-the-ingredients-for-resolution-were-present/ .

Since 2019 is ending and 2020 is upon us, what do you think was the right thing to do last year, and what not? That is the point of introspection, which is a great tool to use in mediation, although it takes time. See, https://karpmediation.wordpress.com/2013/08/14/the-timelessness-of-introspection-and-the-time-it-takes/ .

***
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.

It Is the Litigant’s Decision Not His or Her Attorney’s

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Sometimes a litigant decides not to settle the dispute in mediation (although settlement might come later, if at all).

Self-determination is an essential part of the mediation process.

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 .

See, also, Rule 3.853 of the California Rules of Court [“A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties.”] and https://karpmediation.wordpress.com/2016/01/24/defining-success-in-mediation-an-ethical-response/

Consequently, as a mediator, I must and do respect a party’s self-determination not to settle if that is the outcome.

The litigant’s attorney, in the role of counselor at the mediation, might express privately to the client and/or the mediator, his or her personal preferences or recommendations for settlement and on what terms.

However, it is the client’s right to decide what to do.

New Rule 1.2(a) of the California Rules of Professional Conduct makes this clear; it says in pertinent part:

“A lawyer shall abide by a client’s decision whether to settle a matter.”

A litigant’s decision not to settle may be frustrating to others in a mediation, but that cannot be helped in a process known for its principles of free, informed, voluntary 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.

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.

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