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An Opinion Piece on Doing What is Right and Good

In this week’s Torah portion, called Va’etchanan (Deuteronomy 3:23–7:11) we are reminded, among many other commandments, to do what is right and good (Deut. 6:18).

I know that this is how is live my life, whether, as in the past week, I am taking a shut-in elderly relative out for dinner, or having a recently widowed friend to our home for a meal, or taking care of an infant grandchild, or giving a break on mediation fees for a dispute over a very small sum of money, or whatever.

But I am not convinced that, in the larger sense, our society is doing what is right and good, and I am greatly disturbed by this.

I read about politicians who are blatantly untruthful or apparently think they are above the law.

I hear of foul language being spoken by people in high posts.

I learn that immigrants to our country may be excluded because they do not speak English or do not have sufficient education or technical expertise.

I follow the trending news that those most vulnerable in our society might lose healthcare coverage or be denied the safety net of Medicaid.

I fear that the ACA is being sabotaged for political gain.

I am repulsed by attempts to bar refugees and others from entering our country based upon their religious beliefs.

I am angry that immigrant parents are being separated from their families and are being deported without good cause.

I am upset that LGBTQ individuals may not be treated equally in the military or elsewhere.

I am outraged that women’s healthcare is at risk and that Planned Parenthood is a target.

All told, I am disgusted by so much in the news these days.

It is not right and it is not good, and I think that we, as a society, are better than that.

We have the Constitution: we have Due Process and Equal Protection.

We are a country of laws.

I thought we were a country of morals.

Rashi, a medieval French rabbi and commentator, says that doing what is right and good is a moral obligation to go beyond what we are legally required to do.

There are many reminders in my life of what is right and good.

The Torah portion, Va’etchanan, for instance, recalls the Ten Commandments among other things.

The Scout law reminds us to be trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean and reverent, no matter what our President makes of it.

Freemasonry teaches us to respect freedom and to value kindness, tolerance, and our differences; to take responsibility for the well-being of our brothers, our families, and the community as a whole; and to stay true to our personal code of conduct and ethics – honor, integrity, personal responsibility, and the continuous pursuit of knowledge.

All of this is what is right and what is good and this is how I live my life.

Why is it not so for others in our society?

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who sometimes voices his opinion. He is also a Freemason and a retired Scouter. His website is at http://karpmediation.com .

For Life, For Opportunity

In the pool this morning for exercise, I allowed some random thoughts to swim together, as it were, while I was doing my laps. As we all know, sometimes one thought leads to another and what appears to be disconnected actually makes some sense when put together.

This past week, my wife and I and our son attended the funeral and burial of a contemporary of mine. We have been associated with the family for a very long time. The connections ranged from friendships in common social circles to participation together in Scouting over the years.

Afterwards, as is tradition, we visited the family’s home for the so-called meal of condolence (Seudat Havra’ah) and attended the religious service there, which was a part of the afternoon/evening (Shiva Minyan). I returned to the home the following evening as well for the evening prayers and will do so again for as long as the family wishes.

So, naturally, due to the intensity of these events, I have been ruminating about all of this for several days.

Maybe it was the conjunction of Scouting and prayer that led me, randomly while swimming this morning, to think about a particular Scouting prayer that is often said at Scouting events before meals.

It is called The Philmont Grace and it goes like this:

For food, for raiment
For life, for opportunity
For friendship and fellowship
We thank thee, O Lord

I have always liked this prayer. It is simple, succinct, yet all-encompassing. Even so, the part of the prayer that came to me while I was in the pool swimming was the second line: “For life, for opportunity.”

Here’s why:

For life — Our friend who died had a good life, although he was challenged with health issues. From knowing him and from listening to the eulogies, I know that he was a good husband and father, and I am certain he was very proud of his roles as such.  He was a mensch in so many ways and so provided his family during his lifetime with food, raiment, life, opportunity, friendship and fellowship, and much love, all of which made his life important, significant, and memorable.  As we say in our tradition, “may his name be for a blessing.”

For opportunity — For myself, personally, I have come away from these events with my own sense of gratitude for the experience, in that I had the opportunity both to honor this friend’s memory and to lend emotional support to his family during their time of intense grief.

In writing this short piece, I am also reminded of this quote that I have on my business website:

“We make a living by what we get, we make a life by what we give.” – Sir Winston Churchill

For life, for opportunity — This is what I have been thinking about, and this is how I live my life, ever thankful for the opportunities that come to me to give of myself when I can.

***

David I. Karp is a full time independent mediator of real estate and business disputes who has become much more sentimental and reflective as time goes by. His business website is at http://karpmediation.com .

 

Mediation is like Swimming.

It is summer and I do laps in the pool for exercise. While doing so this morning I thought about how much mediation is like swimming.

In both…

Some people only dip in their toes to test the water, some wade in but tentatively at first, and some dive in with purpose.

Some people come alone and many come in groups; everyone brings a cell phone and sometimes a book to read.

Some people are willing to talk to the others at the pool or in the mediation; some are much less communicative and need their own space to get things done.

Some are very confident in the moment and some look as if they need a rescue from time to time.

Some will keep things covered up while others are more willing to show their true selves.

In any event, everyone wants to feel safe and no one wants to get burned.

In both mediation and swimming, people decide when to leave but many stay longer to use their time for their own self-interest and benefit.

In both mediation and swimming, there can be a certain amount of exhaustion but also a sense of satisfaction at the end if one has done what one came to do.

I love swimming and I love mediating. I continue to do both because I know that both ultimately relieve stress and both are good for the heart.

***

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 .

Potential Exception to Mediation Confidentiality Looming

To my colleagues who practice law in California:

For quite some time, principally as fallout from the California Supreme Court decision in Cassel v. Superior Court, 51 Cal. 4th 113, 244 P.3d 1080, 119 Cal. Rptr. 3d 437 (2011), the California Law Revision Commission (CLRC) has been studying the relationship between mediation confidentiality and attorney malpractice and other misconduct.

Now, CLRC has tentatively recommended the creation of a new exception to mediation confidentiality.

According to the CLRC’s recent Press Release, “the proposed new exception is designed to hold attorneys accountable for misconduct in the mediation process, while also allowing attorneys to effectively rebut meritless misconduct claims.”

CLRC’s Press Release can be found here: http://www.clrc.ca.gov/pub/Press/Press-K402.pdf

Here is a link to the 162 page publication of the CLRC containing the recommendation: http://clrc.ca.gov/pub/Misc-Report/TR-K402.pdf .

The proposed exception is set forth in a proposed statute, Evidence Code Section 1120.5, set out on page 145 of the above publication.

In large part, the mediation community, including me, believes that the proposed exception, or any exception, to confidentiality may have a chilling effect on mediation, and diminish the possibility of settlements in mediation, as there is a risk people will not feel comfortable and speak candidly in mediation if they know that under certain circumstances what has been said and done in mediation may become admissible.

If you believe that the proposed loophole in mediation confidentiality, if it becomes law, may have a negative impact on your use of mediation as a tool for dispute resolution, you might contact the CLRC in that regard. The above Press Release seeks public comment by September 1, 2017.

***

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 .

Preparing Well for Mediation

Mediation has become a primary means of resolving disputes in recent years, mostly to avoid the risk, expense and emotional drain of litigation. Mediation is not a casual encounter however:  it requires thought, presence of mind, and most of all advance preparation.

Many mediators have written about advance preparation. Many mediators have also observed, as have I, that sometimes there has not been sufficient preparation by the attorneys or their clients to make the most of the opportunity for resolution. [See related post for comparison.]

I try my best to prompt the advocates to prepare well.

I ask for mediation statements or mediation briefs. But I don’t want just legal argument. [See the related post and another .]  Instead to get to the heart of the process, I ask for these things in the cover letter I send out when convening the mediation:

• A brief summary of the factual background

• Important Points and Authorities if desired, but be brief

• A summary of the parties’ settlement history, including any dates and amounts of settlement proposals

• A statement of your client’s interests, needs, concerns and priorities regarding settlement [related post ]

• A statement of what you believe to be the interests, needs, concerns and priorities of the other parties; and

• A description of any obstacles to settlement and proposals for overcoming them. If you would like me to know something from you confidentially prior to the mediation, you may accompany the foregoing with a separate private letter to me. [See related post .]

With minor variation, this is the format utilized by the Appellate Mediation Panel, of which I am a member, at the California Court of Appeal, Second Appellate District, and I think this format is very helpful.

Of course, I ask what I ask and I get what I get. But I read everything I receive, more than once, in order for me to prepare well too.

Also, I ask that the mediation statement be shared in advance among all sides and not sent only to me, because I believe that the most important reader will be one’s opponent. If I receive the brief in confidence, I learn many things, but I can’t share the information – it’s confidential. So, if one is seeking concessions from the other side, the other side should know why (i.e., what the rationale is, what the risks are) and the best spokesperson for this is usually the advocate. [See related post .]

I also like to have advance private telephone conversations with each attorney, usually on the day before the mediation but after I have received and reviewed the mediation brief. [See related post .]

In that conversation, I can find out important things that maybe the attorney did not want to write about, particularly but not only if the mediation statement has been shared as requested.

In that conversation, I can ask:

• if the attorney has met, or will meet, with the client in advance to discuss the mediation;

• if the client has realistic or unrealistic expectations and what the attorney would like me to do to help manage those expectations [see related blog post and another ];

• if the attorney has given a realistic litigation budget to the client if the case does not settle;

• if the timing is right for mediation;

• if the right people (decision-makers) will attend in person and who else might attend and why [see related post ];

• what the attorney expects from the mediation and how to achieve those goals;

• whether there are client control issues and what help the attorney would like from me about them [see post ]

• what are the attorney’s or client’s feelings about a possible joint session and when and how that session might take place [see the related post ]

• and so forth.

Usually I send out correspondence a week or so ahead of the mediation to prompt the timely submission of the mediation statement and to arrange the above private telephone call.

Along with that letter, I also send out a useful handout from the Court of Appeal’s mediation program, which I find helpful in all mediations. I ask that the document be shared with the clients. I don’t usually know if the client actually sees it, but it is another prompt in favor of preparation.

I think about the mediation as well, well before it takes place, but mostly as a result of the input I have received in advance. Also, I like to arrive early, sometimes 30 minutes to one hour before the mediation, so I can look over the papers again, get situated in the conference room, and plan how the mediation might get started and what I will say to each side, whether jointly or separately.

Occasionally, I will stagger the arrival time if I have perceived from the phone call or otherwise that one side needs more time with me privately at the outset than the other.

Usually, if the parties and their counsel are well prepared, as I know I will be, a productive mediation will take place and maybe a settlement will even come about as a result if that is what the parties ultimately decide. [See related post .]

***

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

That Great Sense of Relief

After my visit with my cardiologist today, I felt a great sense of relief. I received very high marks, so to speak, for the improvements in my health following last year’s (mild) heart attack.

The improvements came from significant changes in lifestyle, including diet and exercise, among other things.

My own relief today reminded me of that same sense of relief that I perceive litigants feel too when they have settled their disputes in mediation.

Some of the definitions of “relief” that I found on the internet today include these:

• “A feeling of reassurance and relaxation following release from anxiety or distress.” See, https://en.oxforddictionaries.com/definition/relief

• “The alleviation of pain, discomfort, or distress.” Id.

• “A feeling of happiness that something unpleasant has not happened or has ended.” See, http://dictionary.cambridge.org/dictionary/english/relief

• “Removal or lightening of something oppressive, painful, or distressing.” See, https://www.merriam-webster.com/dictionary/relief

Some people even leave the mediation, after settling, saying “I’m glad that’s over,” or “I’m happy it is over,” or words to that effect.

Getting to that point can be stressful and difficult however.

Sometimes, in private caucus, to move the parties toward settlement, I suggest or ask the fretful person with the hard decision to make:

“What would it be like for you not to have to wake up in the middle of the night still worrying about what might happen?”

Or,

“If the dispute were over, what could you do with the time/money/energy you would otherwise spend pursuing the litigation?”

Or, I might ask other questions involving improving the quality of one’s life or lifestyle if the dispute were over.

I do think that there are positive health benefits to be gained from settlement.

As mediators, sometimes we also need to remind people of that great sense of relief they may feel after putting the litigation behind them.

***

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

Idioms and Risky Moves in Mediation

Always fond of English language use, I sometimes turn to a reference book that has been on my library shelf for many, many years.

The book is called The Morris Dictionary of Word and Phrase Origins, edited by William Morris and Mary Morris (1977, London: Harper & Row, Publishers).

It was given to me by a college friend long ago.

I still refer to it from time to time because I think about idioms in my work as mediator.

Two of my favorite idioms came to mind in a [fictionalized] mediation when one side tried a negotiation move that backfired in the mediation session.

Let me just quote from the book for you.

Penny wise and pound foolish, dating back at least to the time of Shakespeare, describes a person so concerned with minutiae that he loses track of truly important considerations….

Hoist by his own petard means “destroyed by his own trickery or inventiveness.” A petard, in medieval warfare, was an explosive charge which daring warriors would affix to the walls or gates of a castle under siege. This action in itself was a most hazardous one, but the greatest danger came after the petard was in place. The explosive was detonated by a slow match or slowly burning fuse. Occasionally, of course, the explosive went off prematurely, in which case the warrior was hoist (lifted or heaved) by his own petard. It is unlikely that this archaic phrase would have persisted in our language, even in a figurative sense, had not Shakespeare conferred immortality upon it with this line from Hamlet: “‘Tis the sport to have the engineer hoist with his own petard.” Today it is chiefly used to describe a person ruined by plans or devices with which he had plotted to ensnare others.

So, why did these idioms come to mind?

Well, I’ll tell you.

At the last minute, after hours of back and forth negotiation, a disputant decided that he wanted just a little bit more from the other side than was offered, instead of saying yes to the offer that was well within his so-called zone of possible agreement. (See my related post at https://karpmediation.wordpress.com/2014/06/19/expect-the-unexpected-everything-is-a-strategy/)

Forewarned that this might be a risky move after such a grueling day of tiring negotiation, the disputant nevertheless insisted that the counteroffer be communicated in the other room, which was done. However, the counteroffer was angrily refused by the side that was clearly worn out by the lengthy negotiaion, the briefcases were slammed shut, and the other side impatiently left the mediation in a huff. (On when and how to say yes or no in a negotiation, See Wheeler, M. A. (2013) The Art of Negotiation: How to Improvise Agreement in a Chaotic World. New York: Simon & Schuster.)

It might have been that it was penny wise and pound foolish for the responding party not to stretch a little to meet this higher demand and make the deal then and there even though late in the day and beyond the party’s expectations … or, at least, to check his emotions, take a deep breath, and say “no” in a more constructive way to allow the mediator additional time to help close the deal.

On the other hand, it might have been that the demanding party would have been hoisted on its own petard because the mediation session ended without any agreement at all.

The good news is that the deal was saved later in the week via telephonic intervention by the mediator (see the related post at https://karpmediation.wordpress.com/2013/10/11/following-up-and-the-importance-of-being-earnestly-persistent/ ).

The other good news is that my reference book is still available in my library so I may consider what idioms might apply in another forthcoming mediation!

***

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 . Please email him at davidikarp@karpmediation.com if you have a favorite idiom you want to share.

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