Skip to content

Watch What You Say.

As we have learned from the recent explosive responses worldwide to some crass language blurted out by our president, apparently in a moment of frustration (referring to countries in Africa and Haiti), words really matter. People need to watch what they say.

This happens in mediation too, as one would expect. A word or a statement can have dramatic consequences, either ending the negotiation or facilitating it.

It sometimes happens that the claimant “explodes ” when the respondent contends that it has no money. Usually, the outrage is because the claimant believes otherwise, based on research or personal experience. Or the claimant just wants to believe that the respondent has resources available to pay a settlement. If/when the respondent remains intransigent, maintaining the contention of no money, sometimes the mediation just ends.

Sometimes personal statements from one side to the other tend to give offense, even if innocently made, which sets off an angry emotional response. Consequently, often lawyers do not like joint sessions because they don’t want to risk any outbursts.

On the other hand, sometimes the joint session facilitates the negotiation, in instances where, for example, one side is willing to offer an apology, which is very powerful. See, https://karpmediation.wordpress.com/2015/01/26/an-apology-made-all-the-difference/

Advance preparation helps: The lawyer can suggest to his or her client to use care. The mediator can find out in advance if the parties are able/willing to talk to one another.

Being aware in the moment also helps. Mediations are unscripted and anything can happen when people are angry or upset.  See, https://karpmediation.wordpress.com/2018/01/04/with-anger-you-dont-get-too-far/

But it’s best for people to remind themselves to “Watch what you say.”

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. He mediates at the heart of the dispute, which is to say, he focuses on core issues for resolution while respecting the emotional context of the conflict. His website is at http://karpmediation.com .

Advertisements

The Ocean Cannot Be Emptied with a Spoon.

“The ocean cannot be emptied with a spoon.” This is an English translation of the following Yiddish saying, “Men ken dem yam mit a lefl nit ois’shepen,” at least according to a book on my library shelf, called Yiddish Wisdom: Humor and Heart from the Old Country, with translations by Rae Meltzer.

To me, the above idiom is either about taking on too big a task or being frustrated with trying to do too much and not getting far enough. I write about the latter.

As mediators, we always try to accomplish the resolution of the dispute that has come before us, all in one session if possible. We think the lawyers always expect this of us. Some do, many don’t.

But it’s never up to us as mediators to make the final decision about whether or not to settle on that day or at all. Sometimes it is too soon for the parties to settle then, or not appropriate for them to settle at all, for various reasons.

Rationally, we mediators recognize that self-determination is the cornerstone of mediation, and, so long as we have done our best to lay the groundwork for informed decision making, we should be happy that we have conducted ourselves and the mediation appropriately.

But we still go home frustrated sometimes if the case did not settle on that one day.

One way to manage that frustration is to follow up in the days or weeks ahead, to check in with the lawyers, to learn if the case settled subsequently and, if not, to see if anything can be done then – or thereafter – to get the case settled.

That’s what I do. I follow up.

And that’s what I did with two recent cases that did not settle at their mediation sessions last month.

In both cases, as often happens, the mediation was used by the parties and their counsel to “test the waters” as it were and to learn what it would take to get the matter settled. In each case, one side had only limited monetary authority at that time, up to only a certain amount, that could be utilized for the settlement of the matter. Neither case could be settled without more authority (i.e., more money).

On follow-up, I learned recently that BOTH cases settled after the mediation but as a result of the mediation.

I was thrilled and replied with my congratulations. (I also felt relieved of any residual frustration I might have had; there’s usually always a little bit.)

Thus, in the final analysis, it seems that even although the ocean cannot be emptied with a spoon, the spoon can make a small difference after all.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. In college, he studied Yiddish as a foreign language and relishes in the wit and wisdom of the culture. His business website is at http://karpmediation.com .

With Anger You Don’t Get Too Far.

In a father’s speech at a recent wedding, I heard the following advice to the newlyweds: “It’s hard to stay angry with each other when you’re both naked” or words to that effect.

Momentary silence followed. Then the room erupted in hearty laughter at the truth of it.

I am still amused by this advice but won’t write about it since we don’t do that in mediation.

Instead, here is a corollary which I think is equally profound and at least slightly more relevant to mediation.

In Yiddish, it goes like this: “Mit rugzeh fort men nit veit.”

In English, it means, “With anger you don’t get too far.”

See, http://kehillatisrael.net/docs/yiddish/yiddish_pr.htm .

This is axiomatic: In mediation, you just don’t get too far with anger.

So the question is: how do we deal with people’s anger?

First I think that we have to understand anger or at least consider what it might be.

I believe that anger is a mask that maybe hides deeper feelings, like these: hurt, insult, vulnerability, guilt, insecurity, powerlessness, humiliation, shame, mortification, diminished self worth or self esteem, frustration, disappointment, etc., or any one or more of these. I think I read this somewhere. I believe it nevertheless.

Anger also comes out as a reaction to perceived injustice, unfairness, inability to control the situation, and so much more.

So what do we do with anger?

Listening is a good start, with appreciation, compassion and empathy for the person’s distress. People want to be heard so I let people vent if they need to do so. Often this takes place in a private caucus, but occasionally it happens in a joint session (although that can be risky).

Labeling sometimes helps, like this “I hear that you are angry.” In response, people sometimes calm down or at least pause to consider what else to say.

Redirecting is useful. After allowing the person to vent, helping the person to refocus, redirecting him or her from the problem itself to finding a solution to the problem sometimes works, like this: “I hear that you are angry. What can we do about it?”

There is also science about the brain that suggests that anger and other emotions short circuit rational thought and problem solving. Sometimes pointing this out helps too.

Overall, I think empathizing, paying attention, and respecting the person and his or her feelings, goes the furthest to get past the anger and onto the problem-solving aspect of mediation.

All of this takes time however and participants in mediation need to understand this, be patient, and allow enough time in the mediation for this process to work, if it will.

(Also, hat’s off to the groom’s father who led me to think about anger for this piece.)

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. He mediates at the heart of the dispute, which is to say, he focuses on core issues for resolution while respecting the emotional context of the conflict. His website is at http://karpmediation.com .

So Much Symbolism: A New Year, A Wedding, and Life

I saw a man wearing a hat on New Year’s Day that said “Life is good.” I agree.

Even the year 2018 tells me that life is good. The last two digits of 2018 say so:

In Jewish tradition, “18″ is represented by the two letters, “chet” (representing 8) and “yud” (representing 10) that spell the word “Life.”

(This of course is why I make donations in multiples of $18.)

And then there’s the toast, “L’Chaim”, meaning “to life” …

Which brings me to the subject of the wedding I attended this past weekend, at which I saw so many more symbols of life, living, and living well, fully and happily.

Here are just a few:

With a nod to those who came before us, we learned that the diamonds in the bride’s wedding rings came from family heirlooms of grandparents or great-grandparents no longer living.

To honor the living, the wedding procession included grandparents, parents escorting the bride and groom, friends/siblings as bridesmaids and groomsmen, and small children as ring bearers and flower girls.

To honor the Bride and Groom, and all, cousins played their instruments beautifully for the procession and recession and for a room full of family and friends who witnessed a ceremony filled with tradition and joy.

Bride and Groom encircled one another to wrap themselves in each other’s lives for all that is to come to them, for them, and from them.

They stood together under the “chuppah” (wedding canopy) representing the home they will make together, with open sides to invite friends, family and community into their lives, and with parents at the corners of the chuppah for support.

After a toddler in the audience gave voice, the rabbi quipped to remind us of new lives that may come from this union, to the joy of wedding couple, their family, and everyone.

Finally, to symbolize the hard times every couple will inevitably have to face together, and other things, the Groom stomped on a glass breaking it into many small pieces, to which everyone responded with “Mazel Tov.”

The newlyweds start 2018 with joy, with blessings, with hope for a good life together, and with the love and best wishes of all who know them.

Each of us starts the New Year with similar hopes for a life to be lived well, free of anxiety, burden, illness or harm, and with happiness, good times with family and friends, and prosperity.

Let this New Year be a good one for all of us.

And Mazel Tov to the khosnkalle (newlyweds).

L’Chaim.

***

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

Using Traditional Reflections to Help People

As mediators, sometimes we must improvise to help people to resolve their disputes. After all, nothing is scripted in mediation and we, or at least I, use whatever comes to mind that may resonate with the person we/I want to reach.

Sometimes our commonality with others allows us to draw on mutually held beliefs, traditions, backgrounds or experiences to move the discussion forward.

Thus, in circumstances where it is appropriate to do so, I draw on Jewish traditions, sayings, and other cultural idioms or ideas with which I am familiar that I think may help someone in the room understand what I am talking about.

Here are three examples of what I mean:

In one mediation, as between a husband and wife, differences of opinion on the amount necessary to settle stood in the way of the resolution of a leasing dispute. To the person with whom I was speaking privately, I explained the concept of Shalom Bayit, at least as I understand it. Shalom Bayit literally means “peace in the home.” It is a concept of marital harmony. The reference enabled the spouses to find a number, that they both could live with, as the next move in the negotiation. Had they not conciliated with one another, I could not have moved them and the other side closer toward the settlement that they wanted and ultimately achieved.

In another mediation, I dealt with a general contractor originally from Israel who spoke halting English. He had come to a point in the negotiation where he did not feel that he could make another move, yet his number was too far away from the other side’s number to get him or them to peace. I confided with him that I too am Jewish and acknowledged to him that “I know, sometimes we are a stiff necked people” a reference to the Golden Calf episode in the Bible [see, Exodus 32:9]. He grew quiet for an extended time while he mulled over what I had said. I could see the concentration on his face, and then, after several minutes, he started to laugh. I asked him “why are you laughing?” He replied, “it’s the first time I ever heard that in English!” He had figured out the reference, translating it to himself from English to Hebrew. Then, ruefully, he gave me a new number, which moved the discussion closer to settlement.

In yet another mediation, a father and son were in a business dispute with one another, each wanting money from the other. They were stuck. Ultimately, at the right moment, I recalled to one of them a Yiddish saying, which in English goes like this: “When the father gives to his son, both laugh. When the son gives to the father, both cry.” This reference broke the logjam and the case settled soon thereafter.

Thus, we mediators make use of whatever tools or unique ideas we can bring to the table that will help the parties to resolve their disputes. In the disputes above, these reflections from Jewish tradition, all spontaneous at the time and in the moment, helped the husband and wife, the general contractor, and the father and son, to move past their own intransigence, in order to make the additional concessions necessary to resolve their respective disputes.

It doesn’t always happen that way, but, for me, sometimes offering some traditional insights really helps people to see their problems in a new light.

***

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 .

Questions Intended to Get People Thinking

I like to ask questions in mediation that get people thinking about resolution or at least reveal something about their intentions. Usually I ask them right up front; sometimes I will refer back to them later on.

Here are a few of the questions that I sometimes ask, along with some commentary about them.

“On a scale of 1 to 10, how productive a mediation do you want today?”

Almost universally, people say they want the mediation to be productive and usually give this question an 8, 9 or 10 rating. In part, however, this is a trick question because it is usually followed up with this one:

“On a scale of 1 to 10, how important is it to prove that you are ‘right’ and the other side is ‘wrong?”

To me, it really doesn’t matter in mediation who is right and who is wrong ultimately. Instead, what matters is how we can address the underlying needs and interests of the disputants to find common ground. Consequently, in my mind, the lower the rating on this question, the more likely it is that the mediation will be productive. The higher the number, the less likely it is that the mediation will result in resolution, UNLESS I can use this question as a teaching opportunity to suggest that these first two questions are inversely related, and that the higher the rating for the first question and the lower the rating for the second underscores what is important to resolution and helps shift the focus to problem solving instead of who is right and who is wrong.

As an aside, in one recent pre-litigation mediation, wherein both lawyers (and consequently their clients) believed that they were right and the other side was wrong in the legal interpretation of a contract provision, it really was important to them to prove this, as a result of which I concluded with them that although they were required by contract to mediate before litigating, the litigation probably was the better dispute resolution forum … to which both sides responded in private caucus that they were only there for the mediation because they had to be (or they would lose their right to prevailing party attorney fees later on).

On the other hand, the question does help to teach the real focus of the mediation, along with this one:

“On a scale of 1 to 10, how interested are you in understanding the perceptions, motivations and needs of the other side?”

I believe that this question helps people immensely to understand what is really important in the discussions that will ensue during the course of the mediation and helps direct the negotiation. People usually approach resolution more readily when the potential agreement satisfies their needs and interests and therefore both sides need to understand the needs and interests of the other.

And then there’s this one:

“How responsible do you feel for finding solutions that will also work for the other side?”

It is important to me to emphasize that “it takes two to tango” to get to settlement, and this question allows the disputants to reflect that they will have to compromise in some way to get to peace.

I should add that these questions, and others, either have been borrowed from or inspired by Kenneth Cloke who wrote, among other things, Mediating Dangerously: The Frontiers of Conflict Resolution (Jossey-Bass, 2001), a fixture in my library on mediation and negotiation.

Then there are these questions:

“How much will it cost to prove that you are right and the other side is wrong?”

At the start of every mediation, each person believes that he/she is right. It is a given. This question, therefore, asks for a cost analysis that should be undertaken when deciding whether or when to settle the dispute, if at all. For most people and small businesses, the cost of the fight may outweigh the benefit and it is important to put that issue into the mix when deciding what to do. It is possible that they cannot afford the fight.

Another aside: In a recent mediation between two national companies, this question was irrelevant to them and they continued in their “rights based” pursuit of victory without settling because they could afford the fight.

For most, however, this is a really important question along with the following question which adds risk analysis to the cost analysis of the prior one:

“What if you are right and the judge or jury disagrees with you? (In other words, what if you are wrong?)”

Then, finally, I end with: “If the fight is costly and risky, what else can you do?”

To which the answer is to engage fully in the mediation and work towards settling the dispute.

Questions are a wonderful tool for teaching, for learning, for revealing what is important, for reflecting and for helping people to resolve their disputes.

What do you think?

***
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 .

2017 Donations in Your Honor In Lieu of Commercial Holiday Cards

Always in lieu of spending the money on commercial holiday greeting cards that people throw away, I like to make donations at this time of year, usually shortly before Thanksgiving for these purposes:

• To honor friends, family, and business colleagues, to express my gratitude for our relationships with one another, and also

• To fulfill my commitment to Social Action, that is, to help repair the world (Tikkun Olam).

With these goals in mind, this year’s donations have been made:

1. To ADL (Anti-Defamation League) to support its efforts to “oppose defamation, confront extremism and promote a positive agenda of inclusion, respect and the celebration of democratic ideals.” More about this at https://www.adl.org/ways-to-give .

2. To the JFS { SOVA Thanksgiving Virtual Food Drive – JFS { SOVA is the Jewish Family Services of Los Angeles’ Community Food and Resource Program – to help provide turkey, stuffing, gravy, and abundant quantities of fresh produce to families in need. More about this at: https://www.jfsla.org/sovathanksgiving?srctid=1&erid=1179777&trid=a1d07ae7-cbf1-48cd-a309-09fec7d3de60

As I have written before (see, https://karpmediation.wordpress.com/2015/11/22/donations-at-thanksgiving-time/ ), it is not a choice for me as to whether or not to give at this time; it is only a choice of where to give and how much.

I encourage you, too, to take responsibility for such social action and to join me in making your charitable donation(s) at this time [so far as you can do so] – to whomever and in whatever amount – and to join me in repairing the world.

As the good book says: “Whoever saves a life, it is considered as if he saved an entire world,” or something like that.

The best of the holiday season to each and all of us.

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 .

%d bloggers like this: