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Everything in its Time

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Prof. Abdel Salam Majali, is a former Prime Minister of Jordan. He has been a Professor of Medicine, University of Jordan, since 1973.  Currently, Prof. Majali is President of the World Affairs Council (Jordan), member of the the InterAction Council (which is a club of former heads of state) and President of the Islamic World Academy of Sciences (IAS). See, https://www.iasworld.org/prof-abdel-salam-majali/ .

When asked how soon peace would come after King Hussein of Jordan announced that he would meet in Washington, on July 25, 1994, with Premier Minister Yitzhak Rabin of Israel, Majali said this:

In Arabic, we say, “He who hastens things before its time, God will prevent him from having it.” Not to try to push things before it is time. When it is time, it is right. It is delicious, it is good. If it is before its time, if you eat the apple before its time, you will get tummy cramps.”

Kolatch, Alfred J. Great Jewish Quotations, Middle Village, NY: Jonathan David Publishers, Inc. 1996, p. 304.

This is such good advice for us mediators and those with whom we mediate.

We mediators, I tell myself, should not jump the gun when someone inquires of our mediation services. If we are to be selected for the mediation of a particular dispute, we should wait a time with patience. They will get back to us if not pressured, or not, inasmuch as we all know that everyone, on all sides of the dispute, must first agree to our engagement, plus where and when the mediation will take place. When I am chomping at the bit because I was just contacted with an initial inquiry, I do my best to hold back. And I keep reminding myself not to rush things (although sometimes a follow-up email is welcome).

In a mediation, sometimes I must remind others not to rush things either. In my experience, some mediations do not resolve in the half-day-or-less time limit that attorneys or their clients may impose (often because of the perceived expense of the mediation or their own pessimism about the outcome).

Sometimes I need to say that “mediation is a process and not an event,” something we mediators are all taught; it takes time for the magic of mediation to ease the emotional or financial barriers that may present themselves. Or, it may take reflection or maybe further negotiation following the mediation session in order to get to peace.

Moreover, if the mediation has been scheduled too soon in the course of litigation (due to pressure from a judge, for example), it may not resolve then and there and instead cause renewed acrimony and more vigorous litigation activity. Thus, sometimes later is better. We mediators actually have a word for this: “ripeness.” Just like in the case of Professor Majali’s apple, above.

Sometimes, as we are also taught, the right move at the wrong time is the wrong move. The parties/counsel sometimes want to get to the negotiation right away or to announce their “bottom line” too soon. And with all due deference to them, we mediators must sometimes try to hold them back; there is so much more to do first.

So, Prof. Abdel Salam Majali was correct when he gave the response quoted at the outset of this piece:

Timing is everything in mediation (as in life).

***

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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Feeling Helpless about Things Beyond Our Control

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Living in Southern California during the firestorms, like now, leaves all of us feeling helpless because the fires are completely beyond our control.

Certainly, we can prepare, maybe by pre-loading the car with some of our belongings and important papers, in the event the fire comes our way. And that may give us some solace but not much.

Or, if indirectly affected, we can feel less helpless by making a donation toward disaster relief to a charity of our choice. (To relieve my own feeling of helplessness about the fires raging locally, my donation will go to the California Community Foundation. See, https://www.calfund.org/wildfire-relief-fund/ . )

But what if we may or must face a mandatory evacuation notice? It would mean that there is extreme danger beyond our control and we are otherwise helpless to do anything about it except maybe to flee.

The fear, the worry and the uncertainty are staggering. A devastating loss of life or property is so much worse than nearly anything else imaginable. There is so much at stake and it must be awful for anyone facing this kind of disaster. My heart goes out to people in such a predicament.

To a much lesser extent, legal disputes in which people are involved also bring about fear, worry and uncertainty. At least, these disputes are not usually life-threatening (although I am aware that litigants have had heart attacks because of the stress). Nevertheless, they can be devastating to one’s finances, resources, or reputation. And people do feel helpless because the litigation may seem to be beyond their control.

But litigation is not entirely uncontrollable. A settlement of the dispute will yield certainty and end fear and worry, even if one does not receive as much as desired or pays more than desired.  In mediation I always say, “you have to give up something to get something.” That is the essence of making a settlement and getting to peace. And peace is not the absence of conflict it is simply the management of it.

But the value of peace is that the conflict no longer creates fear, worry and uncertainty about the outcome of the dispute.

As human beings, we will always feel helpless in disasters where there is no way to be in control. But litigation need not be a disaster inasmuch as litigants can control the outcome through settlement.

My heart still goes out to disputants who feel there is no hope of settlement. But I do recall that Aristotle reportedly opined: “where we are able to say ‘no’ we are also able to say ‘yes’.” “Leo Rosten’s Carnival of Wit. New York: Penguin Group, 1994 at p. 233. And that is the way to take control and end the feeling of helplessness in litigation.

***

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.

Seeking the Positive in the Observance of Yom Kippur

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Yom Kippur begins tonight. The liturgy for the Day of Atonement brings us to our depths, our deepest innermost thoughts about ourselves and those around us. It is filled with “images of doom, judgment and sin.” Strassfield, Michael. The Jewish Holidays: A Guide and Commentary. New York: Harper & Row, 1985, p. 118.  It includes various forms of confession and reflection, and calls for repentance. The Sages teach that, on Yom Kippur, we should deprive ourselves of the pleasures of everyday life. For some, this means not eating or drinking, not washing, not wearing (comfortable) leather shoes, not having sexual relations, and so much more. These observances are designed not to be pleasant.

There is another way to look at Yom Kippur, however.

For me, it is a day in which to look to the future, to ways to be a better person, and in so doing to help repair the world. Strassfield, supra, writes, and I agree: “Yom Kippur is not just a turning away from the negative but is a positive turning as well.” Id.

Knowing all the while that we human beings are not perfect, and that we make mistakes, Yom Kippur reminds us to seek the positive in life, to find ways for personal change for the better. It is a day to recognize that we can only try to do our best, but we should try, even if we didn’t do so as much, or at all, last year.

The self-reflection we are to undertake during the Days of Awe (the period between the Jewish New Year and the Day of Atonement called Yamim Noraim), and the personal change we are to undergo by Yom Kippur, should “lead us to work for social justice in the world.” Id.

As a mediator, I felt a change in me when, during this week, I donated time to the California Court of Appeal to conduct a pro bono mediation to help improve the legal system and to help increase access to justice.  Maybe it was a form of charitable giving, but it is also an obligation of the profession. Nevertheless, it still made me feel good to do good.

As the editor and a contributor for my Masonic Lodge’s monthly newsletter, I felt a change this week as I wrote about my recent visit to the home of an ailing Masonic Brother. It was another opportunity for good.

I felt a change, too, as I wrote on the subject of kindness for the upcoming newsletter as well.

These examples, I believe, have been the result of the introspection that these High Holy Days demand of us. But it is also a part of my personal code of conduct and ethics and my “way of being in the world.”

I think I will not dwell on the doom and gloom or the sin/repentance themes of Yom Kippur.

Rather, in observance of the Day of Atonement, I will continue to seek the positive, to find ways to better myself, at home, at work, in my Masonic Lodge, and in my community, and in so doing help to repair the world (Tikkun Olam).

***

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 . As can be seen from the above, he does not always write about mediation. Sometimes, as here, he reflects on his Jewish heritage and its ethics and observances.

*This announcement is marked “Advertisement” in order to comply with the State Bar’s Rules of Professional conduct if applicable.

Announcement re Fees for Mediation Services

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As the cost of doing business continues to rise (including State Bar dues now, among other things), so must fees for mediation services. Although fees have not increased in the past three years for my time, an increase will apply now for mediations scheduled to occur on or after January 2, 2020.  If appropriate for your matter, please consider scheduling your mediation to occur before 2019 ends to take advantage of the current fee structure, as shown at https://www.karpmediation.com/about-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 .

*This announcement is marked “Advertisement” in order to comply with the State Bar’s Rules of Professional conduct if applicable.

Valuing and Promoting Tolerance and Diversity

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I had breakfast not long ago with a friend I have known for many years. I knew him first from my time volunteering in Scouting.  More recently we reacquainted because he knows I am a Mason and he is interested in Freemasonry.

I believe that he knows that valuing and promoting tolerance and diversity are a part of the fabric of my life.

From our shared experiences in Scouting in the past, I think he knew then that I promoted tolerance and diversity during a time when the Boy Scouts were excluding LGBTQ adults as leaders. I was vocal at that time in my opposition to such an exclusionary rule, both for myself and for the Reform synagogue of which I was a congregant, which agreed to take a stand against such discrimination while hosting a Cub Scout Pack and a Boy Scout Troop.

At our breakfast, the subject of inclusiveness in Freemasonry arose.

As a tangent to that discussion, I related two things:

(1) I had seen some very disturbing and distasteful posts recently, in an international Masonic Facebook group, that suggested that Masonry should not include members of certain religious or ethnic groups (I won’t specify the target group); and

(2) quite separately, I had been researching, for my lodge’s newsletter (I am its editor), the origins of Prince Hall Freemasonry as a parallel to the Freemasonry I know.

(Leaving out much of the history available at http://www.princehall.org/459/main.html, Prince Hall Freemasonry started on March 6, 1775, when Prince Hall and 14 men of color were made masons in Lodge #441 of the Irish Registry attached to the 38th British Foot Infantry at Castle William Island in Boston Harbor, Massachusetts. It marked the first time that Black men were made masons in America. After the British left Boston, African Lodge #1 was formed on July 3, 1776, with Prince Hall as master. By 1784, the Grand Lodge of England issued a charter to African Lodge #459, the first lodge of Blacks in America. Over time, Prince Hall Masonry was organized under the name “Prince Hall Grand Lodge” (sometimes called African Lodge #1), the names it carries today. From these beginnings, there now are some 5,000 lodges and 47 grand lodges who trace their lineage to the Prince Hall Grand Lodge, Jurisdiction of Massachusetts.)

My friend was astonished and somewhat taken aback that there was a separate line of Freemasonry that developed for men of color. He said he thought it to be inconsistent with Freemasonry as he understood it. I agreed.

I agreed because our Grand Lodge of California asserts, and I believe, that Freemasons value and promote tolerance and diversity, and I know that the Masonic lodge of which I am a member is completely inclusive irrespective of race, creed, color, national origin, religious affiliation, or whatever.

In at least one document from the Grand Lodge of California, the Grand Lodge says:

“Masons believe in the importance of religion; men of all faiths are members of the organization. Freemasonry celebrates ethnic diversity and welcomes men of all racial backgrounds.”

In our conversation, I told my friend that racial relations were different in times past, e.g., when Prince Hall Masonry first started. He concurred. Also, although we still see discrimination in our society unfortunately, the Grand Lodge of California has moved past this separateness by officially recognizing Prince Hall Masons, along with the Grand Lodges of 41 other states and the District of Columbia, this according to the Masonic Service Association of North America at https://www.msana.com/princehall.asp .

Furthermore, I know in my heart that I would not belong to the Craft were it otherwise.

I think my friend was satisfied with my explanations, inasmuch as I continue to value and promote tolerance and diversity, as does  he, and as does the Grand Lodge of California and so many others.

I also relish the fact that my lodge, Clarence F. Smith Daylight Lodge No. 866 [https://www.facebook.com/cfsdaylight/ ], has welcomed and enjoyed the fellowship of Prince Hall Masons and always will do so.

(As an aside, my lodge is hosting an Information Meeting/Open House in Van Nuys, CA, on September 14, 2019, for members of the public interested in knowing more about Freemasonry. See, https://www.facebook.com/events/619894781868604/ . Maybe I will see you there and then!)

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California and a 28-year Mason. His business website is at http://karpmediation.com .

*This blog post is marked “Advertisement” in the event the State Bar Rules of Professional Conduct require the same.

In Mediation Attorney Fees Often Really Do Matter.

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In mediation, I talk about attorney’s fees all the time, whether or not there is an applicable contractual attorney’s fee provision available.  Either way, it makes a difference in settling a dispute that is, or could end up, in litigation.

The attorney’s fee provision, if there is one [and there usually is one in the cases I mediate], allows the prevailing party after trial or arbitration, to seek an award reimbursing attorney’s fees expended or incurred in pursuing the matter to an adjudicated decision.

At the outset of the mediation, that provision often emboldens uninformed parties either to seek their attorney’s fees as a part of the settlement or to move forward in the litigation and not settle, or both.

In most of the cases I see (i.e., where the amount in controversy is not substantially greater than the cost of litigating), the disputants will need to consider whether the investment in the dispute is worth it.

Four reasons why come to mind, each of which is worth discussing:

First, more than 90 percent of cases settle before trial, and so there IS NO prevailing party who can ask for an award attorney’s fees and costs. Parties need to know this, so that maybe they will realize in the long run that they likely will not recover the attorney’s fees they expend or incur.

Second, and consequently, in almost every settlement agreement I have seen in 40 years of practice (25 years as a litigator, 15 as a full-time mediator), one term of the settlement always is that “each party will bear his/her/its own attorney fees and costs.”

In other words, per the terms of most negotiated settlement agreements, most disputants will not recover the attorney’s fees and costs expended or to be expended in pursuit of the claim. And parties in dispute need to know this probable outcome as well before they decide what to do.

Third, even if a party were to prevail in litigation (if the matter does not settle), there is no guarantee that the court will award every dollar spent by the prevailing party on attorneys fees in the pursuit of the judgment. So, the parties may not get back what they spend, in whole or in part for various reasons, even if they win.

Finally, at the end of the trial, the loser often does not sit down to write out a check to the winner. One might have to pursue enforcement of the judgment, which has its own set of issues: (a) it costs a lot of money to pursue enforcement of the judgment; (b) it might be difficult to find available assets of the judgment debtor; or (c) the judgment debtor may not have available or sufficient assets, ever, to satisfy the judgment.

All of which is why people tend to forgo recovery of attorneys fees in settlement, ultimately, once they understand the issue, or they make adjustments in their offers and counteroffers in light of the attorney’s fees that would otherwise be incurred if they went forward with the dispute.

What if there is no contractual or other right to recover attorney’s fees in the dispute? Here, people have to think hard about what to do in settlement as well.

For the side seeking money, the more he or she spends on attorneys fees, the less the net recovery. For the side that may actually end up being liable, the more one spends, the more it costs ultimately.

So, this is why I always talk about attorney’s fees and the costs of litigating in every mediation I conduct.

In two recent cases, the attorney’s fees provision in their contracts, and the fees themselves, really mattered and consideration of this issue led to settlement in both cases.

Frankly, in both cases it was too expensive NOT to settle.

In one case, the parties had already expended in attorney’s fees an amount equal to or in excess of the amount in controversy, and there was a long way to go before trial. They realized they were in a hole that was getting deeper, as it were, and they needed to stop digging.

In another, the estimated cost of litigating so far exceeded the amount in controversy that it made no sense even to begin formal proceedings. Moreover, the possibility that, if the adjudicated decision went against them, they would be responsible to pay the other side’s attorney’s fees in addition to their own, was additional motivation for settlement.

So, in each case, common sense won out; they took the attorney’s fees issue to heart and they settled.

Which is why the consideration of attorney’s fees is such an important subject for 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 .

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Snorkeling at Mediation

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It’s not just what happens on the surface that’s important.

That’s why mediators look below.

It’s like snorkeling in the ocean.

Below is where the currents of emotion exist that pull people this way and that.

To understand the emotional current below is to know what drives the conflict.

Sometimes it is clear and we can see what’s going on.

Sometimes it’s so murky or deep we will never know.

We mediators can also learn, in the course of negotiation, whether the disputants are swimming with the current or against it.

The churning, swirling tide of the negotiation batters them back and forth as they make their offers and counteroffers while the undertow of the conflict pulls them deeper into the dispute … until they too can understand and manage their own emotionality.

Then they may know which way to go.

There can be danger below as well.

Have they themselves risked looking below at their own all-consuming feelings or reactions that encircle them like sharks waiting to gnaw at them?

As mediators, if we can perceive the undercurrents that pull at them, or the riptides that move them away, maybe we can help them to manage the turbulence of their thoughts and feelings and to reach for the clarity of stiller waters.

Maybe the mediation, then, is a raft they can use to paddle out of the rough waters; and once the mediator comes up for air and removes the snorkel, maybe he or she can help point them toward the shore of settlement.

***

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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