Skip to content

Taking Control (per Aristotle)

Litigants often feel as if they cannot control the litigation in which they are involved. Or the risk. Or the expense.

Certainly, to a degree, they can direct their own attorneys to do, or not to do, something, but many do not fully understand the twists and turns of a litigation practice or what is likely the best course of action under the circumstances. Which of course is why they have a lawyer in the first place.

On the other hand, litigants cannot control their opposing counsel.

Neither can they control the court processes or even the judge.

And thus, they cannot control the outcome at trial.

In mediation, however, litigants can control the outcome by settling, if appropriate under the circumstances.

Although there are many reasons given for not settling, including the perception that the reward of going to trial is greater than the risk or expense, or a whole host of other emotional reasons that lead to intransigence, stubbornness, or the like …

there are, as you know, many good reasons to settle, including certainty of outcome, control of litigation fees and costs, peace of mind, and so much more.

It only requires taking control of the situation, which mediation allows.

As Aristotle (reportedly) said:

“When we are free to act, we are also free to refrain from acting, and where we are able to say ‘no,” we are also able to say ‘yes.’” Roston, Leo. Leo Rosten’s Carnival of Wit. New York: A Dutton Book, 1994. Print. P.233.

Aristotle was a smart guy. His observations are still good.

***

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

Advertisements

Serving Lunch at the Mediation

In many instances, I host lunch during my mediations. I think it is very helpful. Here’s why:

People appreciate the courtesy. It allows for the mediation to continue through the lunch hour without substantial interruption … and time is money.

More importantly, I don’t want people to be “hangry” (my daughter’s word) during the negotiation. I think that food calms people and makes them more receptive to offers and counteroffers.

In other words, sometimes it “takes the edge off” and “smooths” the exchange of ideas.

Also, eating is such a social thing. It allows for freer thought or “brainstorming” among those who eat together. I have written about this before although in a different context .

I offer lunch for selfish reasons as well. It takes time for most negotiations to yield good results, and frankly, having lunch during the mediation keeps everyone in the mediation longer, with more thoughtful attention during a longer session.

Finally, I think it creates reciprocity. When I have provided lunch, I can then ask for something, like these (although more subtly or with more tact than I have written, but you will get the idea): I gave you lunch; could you give me another offer or counteroffer to take into the other room? Or, how about reconsidering what is on the table and maybe adding (or subtracting) something in response? Or, why don’t we try again with something else before you pack up? Or, whatever.

So, I see offering lunch as a good idea for mediation. If appropriate, I can and do also tailor the lunch order to the participants. I will order Kosher food, for instance, if it seems right to do so. I remember having a corporate governance mediation in Chinatown among disputing members of a Chinese club, so I ordered Chinese food from a favored restaurant. That was the best lunch.

I think that there is some science behind eating and negotiating well, but you can look it up on the internet as well as I can.

In the final analysis, I don’t like to go hungry either, and I believe I am better at mediating when I am not working with an empty stomach.

So, “Bon appétit” or “Ess gezunterhait” or  “Chī hǎo hē hǎo” as the case may be.

***

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 .

When Spouses Attend the Mediation

“My client wants to bring his spouse to the mediation, is that okay?”

(Here I use spouse for simplicity, but it could be any close confidant – one’s significant other, best friend, parent, child, sibling, or other family member, business partner or anyone in whom the disputant places trust and confidence.)

My response usually goes something like this:

“Many people don’t like to make major decisions without a spouse’s input. Certainly, I wouldn’t make such a decision without consulting with my wife. I think it would be okay with me, but we should ascertain whether the other side is okay with it.”

Usually the other side is fine with having the spouse there, but it is always good to ask to make certain.

Usually one’s spouse – or other confidant – is a good resource for the mediator, not always, but usually.

Sometimes the spouse is simply there for moral support and is the ally of the disputant.

But sometimes the spouse, who might be more detached from the controversy, can become the ally of the mediator, which can be most helpful in resolving the dispute.

Sometimes the spouse is actually the decision maker.

On the other hand, sometimes the spouse is a distraction, so it is best also to ask if his or her presence will be helpful … or not.

Not long ago, William Ury of “Getting to Yes” fame spoke to the attendees (me included) at a recent Southern California Mediation Association annual conference and introduced his recent book, “The Third Side.” Afterwards I read the book. It was excellent.

The spouse might be the third side … as in your side of the conflict, the opposing side, and the third side.

A person on the third side is not directly a part of the conflict, more like an outsider but not. As an example, the mediator is a third side to a dispute.

The “third sider” spouse may be useful in resolving the dispute simply by being present. Imagine, for instance, that the disputant behaves better than otherwise because her spouse is present.

Or, the spouse becomes a consultant to the disputant to help in the decision making process.

Or, the spouse intercedes to help translate some of the mediator’s ideas into words in the couple’s language that the distressed litigant can understand.

Or, a spouse is able to comfort or console the disputant who is clearly having an emotionally difficult time dealing with the conflict and its resolution.

There are many roles that a spouse, or other trusted confidant, can play to help resolve the dispute. Ury identifies ten of them. See, http://thirdside.williamury.com/

So, yes, having the spouse attend is, in most cases, not only okay with me but much appreciated.

***

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 .

Changing Gears

Some time ago I wrote a piece about how Cycling is lot like mediation. See, https://karpmediation.wordpress.com/2016/08/18/cycling-is-a-lot-like-mediation/

I was out on my bike again today and was noticing how often I was changing gears. So I thought:

Today I will write about changing gears in mediation.

Mediation should not be same old thing time after time, and experienced mediators know to “change it up” to suit the circumstances and to help the disputants.

This often requires forethought and planning. See, https://karpmediation.wordpress.com/2017/04/27/preparing-well-for-mediation/

But sometimes things need to change in the moment and we must improvise. See, https://karpmediation.wordpress.com/2015/06/15/improvising-and-taking-risks/

Here are some examples (this is not in any manner an exhaustive list):

If the parties/counsel approve, I might start in a joint session, or convene one later in the mediation, and maybe have the parties together in the same room for that heart to heart conversation or just for a brainstorming session .  See, https://karpmediation.wordpress.com/2011/08/14/%e2%80%9cwhy-did-you-keep-the-parties-together%e2%80%9d/

Or I might never have a joint session, especially but not only if there is such disharmony or agitation about the prospect of being together.

I might start the mediation at a set time for everyone, or I might have people arrive at different times from one another. See, https://karpmediation.wordpress.com/2014/03/25/customizing-the-mediation-process/

As mediator in the joint session (if there is one), I might sit at the end of the table with the parties/counsel on either side facing each other.

But, if they can’t stand to look at each other, I might have them sitting, lined up on one side of the table ,with me on the other.

I might spend disproportionate time with either side.

In private caucus with one side or the other, I might ask the parties to change seats and thus change roles with me, so that perhaps, from a different physical location or perspective, they might see the dispute in a different way.

Sometimes, if highly emotional or distraught people are speaking to me in a gush of words, I will respond calmly and deliberately in a much slower way.

If they cross their arms across their chests, I will move my chair back and put my arms to my side.

Sometimes, I will sit next to the disputant if sitting across the table feels challenging to him or her.

Sometimes, in lieu of continuing without interruption, I ask the parties to take a break, get some fresh air, maybe go for a walk to ease the tension of the moment. See, https://karpmediation.wordpress.com/2011/08/01/the-pause-that-refreshes/

Sometimes, I will recognize that this is not the right time for resolution, and ask that we reschedule rather than continue, for any number of reasons. https://karpmediation.wordpress.com/2015/09/19/returning-to-mediation/

You get the idea.

Thus, back to the metaphor of changing gears.

It is especially important to have this capacity in mediation as each mediation is unexplored territory; and as mediators, we must find our way and help the disputants cover difficult terrain.

So, as with the approach to any uphill challenge, we change gears as appropriate in mediation much like we do on our bicycles.

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 .

What is Fairness Anyway?

Although everyone wants a “fair” settlement, people perceive fairness very differently.

In my mediation practice, I have come across good examples of what I mean, as I will describe below, in the partition cases that I have mediated over the years.

In broad terms, partition in real estate practice is a cause of action utilized to divide real property or its value among co-owners when they no longer agree on the continued ownership, maintenance or disposition of real property owned by them jointly in some fashion (e.g., joint tenancy, tenants in common, etc.).

One disgruntled owner brings, or threatens to bring, a lawsuit usually to cause the sale of the property and a division of the proceeds.

When these cases come to mediation, they sometimes resolve with an agreement on the sale of the property to a third party with the proceeds being split in some fashion among the co-owners. Sometimes one person simply buys out the other(s).

But always the dispute is over who gets what, or how much someone will pay or receive in order for a “fair” division to occur.

Lawyers who participate in these partition mediations usually propose a “fair” division of the proceeds based upon the law — by taking into account the value of the property, the number of co-owners, any uneven contributions to the property (or uneven distributions from the property), and other factors, and by suggesting a number that reflects all of the foregoing.

That is not always how the co-owners perceive a fair division, as you will see.

(In the following examples, all of them partition cases among family members, the families are described by their cultural groups.  These are not generalizations but only a simple means to differentiate among the cases.)

The Filipino Family – Many family members resided in one house. The title was held by one person, but everyone claimed an interest in the property. One of the family members always made dinner for everyone; that was her contribution. In order to do so, she left her job daily at 2:00PM to shop, cook and serve dinner. In that family, it was “fair” for this family member to receive a greater percentage of the proceeds of the sale of the house because of her contribution to the family.

The Latino Family – The elderly mother of the co-owners lived with the family in the house. Each of the co-owners wanted the house and wanted to buy out the other owner. In this family, it was “fair” for the co-owner who was the mother’s caregiver to keep the house and pay the other for his property interest.

The African-American Family – In this case, what was “fair” was based on who needed more of the money. Here, one of the family members was disabled and could not work. In the agreement for the division of the proceeds from the sale of the property, it was “fair” for the disabled family member to receive more than his pro rata share.

The Chinese Family – The oldest male sibling had managed this commercial real property for his co-owner brothers and sisters for many, many years. In this family, it was “fair” for the property manager sibling to receive a greater percentage on sale than his pro rata share because of his contribution of time and effort on everyone’s behalf.

In each of these examples, “fairness” was determined not by legal standards but by how the families adjusted to their own needs and priorities.

In other words, “what was fair” was determined by “what they decided was fair,” based on what was important to them, not by any specific formula.

***

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 .

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 .

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 .

%d bloggers like this: