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January 1, 2023 — Recognizing that three hours usually is insufficient to explore settlement, including the time to prepare and conduct a first mediation session, the minimum commitment from parties/counsel is increased from three to four hours and the required deposit is increased accordingly. The hourly rate remains the same as in 2022.
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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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In almost every mediation I have conducted in the past 18 years, one or more of the disputants has been called upon to pay something to settle the case, usually more than anticipated by him/her/them to get to peace. And many times through the years, I have heard someone say, “I’d rather pay my lawyer than pay the other side.”
Why do you think people say this? For most people, it ignores self-help and promotes self-harm in the sense that the money that could be spent fighting the fight could be used instead to end it.
I hear “I’d rather pay my lawyer” most often when people’s emotions get the better of them, when they are frustrated or angry that their view of the case does not hold sway with the other side, or when they have reached their preconceived limits.
But is this a rational statement? For most, I think not – not when there is a choice between ending the litigation or pursuing it further, or when there is an alternative in favor of certainty of outcome as opposed to uncertainty, or when the cost of litigating will only increase perhaps without reward.
For some, the cost of the litigation does not matter in the mediation. I see this when the disputants are well off financially and there is no lack of disposable income. Or when there is such a grudge that, no matter what, they are just intransigent about agreeing to pay for a settlement. Or, when the trial date is so far off (i.e., if the mediation is too soon) that people cannot or will not consider the cost ahead of them.
These are hard times, however, with a possible recession looming, when individuals’ recovery from the pandemic’s economic effects may be slow, when inflation is rampant, etc.
I think, for most disputants their money is precious. Getting them to acknowledge a potential waste of money, or a potentially unrewarding expense in having the war, can be difficult though.
Sometimes however, during the mediation and with some cajoling from their counsel and/or the mediator, and, importantly, if given enough time for thoughtful self-reflection and if the time is right, people will come around to a result that will help them help themselves rather than engaging in potential self-harm.
I am always reminded in these instances, and I sometimes even remind the litigants, of the old Yiddish idiom:
“A shlekhter sholem iz beser vi a guter krig.” [A bad peace is better than a good war.]
See, https://www.yiddishwit.com/gallery/peace.html .
It is their decision, however, not mine, and I do not judge them.
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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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I think about time a lot. I read science fiction novels involving time travel. I have a chime clock in my living room that I cherish, also clocks – usually more than one – in every room. Now into my 60s, time seems to have sped up through the years and gets faster. With occasional insomnia at night, time awake passes ever so slowly.
In mediation I am aware of the passage of time, too, in several respects.
First, time is money in mediation. Litigants are paying me and their lawyers, and a full day’s mediation can become quite expensive. Consequently, people become anxious and impatient with the passage of time. In my Masonic Lodge, we sometimes talk about “waiting a time with patience.” That’s good advice and I mention this sometimes.
Second, mediation is a process, and it takes time to make decisions. I am reminded of TS Eliot’s words from The Love Song of J. Alfred Prufrock, a favorite poem of mine: “Time for you and time for me, / And time yet for a hundred indecisions, / And for a hundred visions and revisions.” Hence the need, again, for patience.
Third, the time must be right (“ripe”) for mediation. Mediation must not be too soon or there will not have been enough emotional or substantive development to bring about settlement; and mediation must not be too late when so much money has been expended that the attorneys’ fees become the proverbial “tail wagging the dog.” Planning and patience are key here as well.
Nevertheless, as the Good Book says, “there is a time for every matter under the heaven.” (Kohelet – Ecclesiastes – Chapter 3 at https://www.chabad.org/library/bible_cdo/aid/16464/jewish/Chapter-3.htm) . And so I write:
Thank you for taking the time to read this post.
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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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Most mediators have been taught, and they will suggest to the participants in their mediation sessions, that “mediation is a process not an event.”
So, when I see a headline, or hear, that “the mediation failed,” I shake my head as that is a naive way to look at the process.
Not every mediation results in a settlement then and there, but that does not mean that the mediation was a failure. Settlement later may be the likely result of the mediation.
In other words, the mediation may be a stepping stone to settlement.
When sophisticated, dispassionate, participants recognize that settlement at mediation session is unlikely, they may nevertheless wisely appreciate that the session may in fact lay the groundwork for settlement later, and that it is still worth the time being invested in the session.
In this context, wise attorneys use the mediation as an opportunity: to learn as much as they can regarding the other side’s views of the dispute; to evaluate the information presented to them; and then or thereafter to use the information to counsel their clients towards a resolution.
In the mediation, if the participants have an open mind and objectively absorb the conflicting information presented to them by the other side, they may in fact learn that their case may not be as “bullet-proof” as they previously thought or maybe not the “slam-dunk” their clients believe. The likelihood of success at trial may be re-evaluated. If risk is perceived, then compromise can come although the client might have to “sleep on it” to realize the benefit of settlement.
So, yes, mediation is a process, not an event, and it can be extremely useful and sometimes a necessary stepping stone to settlement.
Consequently, one should never look away from the opportunities presented in a mediation session to understand its true value even if the matter is not settled on the spot.
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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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Years ago I wrote about “Bravado in Mediation.” In that piece, I wrote:
“Bravado in mediation gives rise sometimes to outrageous demands and counter demands. [¶] Each side wants to impress the other with the strength of its position (ignoring of course its underlying interests, which may be different). [¶] I refer to this sometimes as ‘saber rattling.’” https://karpmediation.wordpress.com/2013/07/18/bravado-in-mediation/ .
I also observed that, in cross-cultural mediations: “[i]ntuitively, and from experience, I see bravado from disputants here that have cultural roots in other parts of the world. [¶] I know that people from elsewhere think differently and negotiate differently, and bravado is certainly a large component of the process sometimes.” Id.
I conducted a mediation some time ago, one of many wherein the disputants had come from different parts of the world from me and from each another. During and after this particular mediation, I thought about my article on bravado, but ultimately decided that they were “playing chicken” with one another.
The game of “chicken” has been described this way:
“The principle of the game is that while the ideal outcome is for one player to yield (to avoid the worst outcome if neither yields), the individuals try to avoid it out of pride for not wanting to look like a ‘chicken’. So each player taunts the other to increase the risk of shame in yielding. However, when one player yields, the conflict is avoided, and the game is for the most part over.” See, https://en.wikipedia.org/wiki/Chicken_(game) .
We see our politicians playing “chicken” as they wrestle over taxing and spending, or the debt limit, until they “come down to the wire” (i.e. to the last possible minute) with their decision making.
In the mediation about which I am thinking, there was, as in politics, lots of posturing (and lots of bravado). There was also a short time remaining before trial.
The case did not settle during the mediation session. Each side, I think, was “playing chicken” with the other, as each side continued vigorously to assert its view of the case, and who will win/lose and by how much, without acknowledging (at least to me) the interest-based concepts pointed out to them in private, such as the cost of the litigation, the uncertainty of outcome, the substantial risk of loss to the losing side, and the value of a final settlement, allowing each side to get back to their business and personal lives.
After the close of the session, fortunately for their clients, the attorneys continued to engage with me in concerted efforts to keep the negotiation going via telephone and email. The numbers got closer, but I could tell they were having a hard time getting their clients (a) to acknowledge (even to their lawyers, I think) the value of settlement as against the practical realities they were facing, and (b) to find a way to collaborate, close the gap, and get to peace.
With a gap remaining in the numbers, the lawyers had no choice but to spend intensive time, energy and money preparing for trial.
The case did settle ultimately, which I’d like to think was the result of the mediation, and I was elated to learn that they had “come to their senses” even though it was at the last minute. As with so many, this dispute settled on the proverbial courthouse steps. Also, it was likely on terms that I foresaw and maybe even shared with the attorneys, separately, as a possible outcome.
This was not the optimal result, however, because, in the process of “playing chicken,” each side incurred significant legal expenses that could have been avoided with cooperative, collaborative, negotiation in the pre-trial mediation session a few weeks before.
Nevertheless, with the sword of Damocles (i.e., the trial) hanging over them, they ultimately exercised their business sense in getting to peace, finally getting past the game of “chicken.”
For that I applaud them. With their settlement, they did manage to avoid the risks and costs of the trial itself, and the potential for a disastrous outcome for whichever side might lose.
Settlement is a good thing, whenever it takes place. Trial is a good motivator too. But playing “chicken” is not always the best choice.
One writer thought about it this way:
All of these “chicken games” share some common characteristics: They center around critical issues that must be resolved by a certain time limit [e.g., a trial date]; the principal players have strongly held but very different views about what needs to be done; and neither side wants to compromise. The result is a stare down to see who blinks first, and who becomes the alpha-dog.
When problems are solved in this manner, the outcome is rarely optimal. Without a spirit of compromise and willingness to engage in collaborative dialogue, it is difficult … to explore the full range of options and to be creative about alternative approaches….
[T]he reality is that we all play chicken — with customers or suppliers, other departments, colleagues, and even people in our personal lives. Most of us have strong beliefs or views about how things should be done. When others strongly disagree, a stare down is a perfectly normal human reaction. We all want the other person to blink.
The challenge is to get beyond the stare down; engage in open and creative problem solving; and not let the game of chicken continue indefinitely. If we learned how to do this more often and more effectively in our professional and personal lives, perhaps [we] would begin to understand that the real chicken is the one who doesn’t blink.
See, Ashkenas, Ron. Why Leaders Play Chicken, published July 26, 2011, in the Harvard Business Review at https://hbr.org/2011/07/why-leaders-play-chicken.html .
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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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Putting aside the US Supreme Court’s recent inaction in staying its enforcement pendente lite, Texas Senate Bill 8, also known as the “six week abortion ban” ( https://www.texastribune.org/2021/05/18/texas-heartbeat-bill-abortions-law/ ) has been much in the news lately as a Democrat vs. Republican or liberal vs. conservative battle (see, e.g., https://www.reuters.com/world/us/us-house-speaker-pelosi-pledges-action-bill-response-texas-abortion-law-2021-09-02/ ).
However, at the heart of SB 8 [no pun intended, well, maybe just a little bit], this writer sees the motivation of the statute as one of religious belief instead. This appears in the “Legislative Findings” and “Definitions” portions of the bill. See, https://legiscan.com/TX/text/SB8/id/2395961 . For instance:
“Texas has compelling interests from the outset of a woman’s pregnancy in protecting … the life of the unborn child” (Sec. 171.202(3)); and
“‘Unborn child’ means a human fetus or embryo in any stage of gestation from fertilization until birth.” (Sec. 177.201(7)).
To this writer, the statute appears to codify the question of “when life begins” in favor of the Christian belief that life begins at conception.
Citing the Catechism of the Catholic Church, Wikipedia suggests: “The Catholic Church states that its opposition to abortion follows from a belief that human life begins at conception and that ‘human life must be respected and protected absolutely from the moment of conception’.” https://en.wikipedia.org/wiki/Christianity_and_abortion .
The Catechism of the Catholic Church adds: “From the first moment of his existence, a human being must be recognized as having the rights of a person – among which is the inviolable right of every innocent being to life.” https://web.archive.org/web/20111008122958/https://www.vatican.va/archive/ENG0015/__P7Z.HTM#-2C6 .
However, this clashes with the beliefs of Judaism, for instance:
“Jewish law does not share the belief common among abortion opponents that life begins at conception, nor does it legally consider the fetus to be a full person deserving of protections equal those accorded to human beings. In Jewish law, a fetus attains the status of a full person only at birth. Sources in the Talmud indicate that prior to 40 days of gestation, the fetus has an even more limited legal status, with one Talmudic authority (Yevamot 69b) asserting that prior to 40 days the fetus is “mere water.” Elsewhere, the Talmud indicates that the ancient rabbis regarded a fetus as part of its mother throughout the pregnancy, dependent fully on her for its life — a view that echoes the position that women should be free to make decisions concerning their own bodies.” https://www.myjewishlearning.com/article/abortion-in-jewish-thought/ .
In this writer’s view, where the religious beliefs of one group are preferred over the religious beliefs of another group, the statute preferring one over another is unconstitutional in violation of the establishment clause of the First Amendment.
The US Supreme Court said this in Lemon v. Kurtzman, 403 U.S. 602, 612 (1971):
“The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be ‘no law respecting an establishment of religion.’ A law may be one ‘respecting’ the forbidden objective while falling short of its total realization. A law ‘respecting’ the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion, but nevertheless be one ‘respecting’ that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.”
The Lemon Court then announced a three part test for the constitutionality of a statute facing an establishment clause challenge: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion [citation], finally, the statute must not foster ‘an excessive government entanglement with religion [citation]’.” Lemon v. Kurtzman, supra, 403 U.S. at pp. 612-613.
Here, the “six week abortion ban” appears to lack a secular legislative purpose. Instead it appears to advance a particular religious belief. Moreover, it even appears to foster excessive government entanglement because a court may act to award injunctive and monetary damages including “statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced.”Sec. 171.208(b)(2). Cf., Shelley v. Kraemer, 334 U.S. 1 (1948) [a court cannot enforce private racially restrictive real estate covenants under the 14th amendment]; McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) [large and readily visible copies of the Ten Commandments in courthouses held unconstitutional].
The “six week abortion ban,” in this writer’s view, thus offends, among others, non-Christians who hold a different view of when life begins, and ultimately offends the First Amendment as being a step that could lead to “the establishment of religion” in the nation.
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David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who sometimes writes about subjects other than mediation. 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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The Coronavirus “delta variant” is surging according to current news reports. Many people are nervous and upset, even scared about it. Some reports say that even vaccinated people can be infected, resulting in getting sick or passing the virus to others, or both. Unvaccinated individuals, news sources say, are at the most risk.
Many are on edge about the unpredictability of the disease and their own safety. They feel as if they are not in control.
To “take control” is to “gain, assume, or exercise the ability or authority to manage, direct, or influence something.” https://idioms.thefreedictionary.com/take+control+of .
Some people seek to take control of the delta situation by having been vaccinated, wearing a mask, practicing social distancing, and so forth, even though they may be tired of these practices after so long a time.
Some will seek to take control by getting vaccinated for the first time.
Some people feel as if they are not in control of their own lives if they are being pressured to vaccinate or wear a mask, and to “take control” they refuse either or both.
All of this brings me to the discussion of “taking control” of another situation: litigation.
People are not necessarily “in control” of a lawsuit in which they are involved. There is much uncertainty and risk, not unlike the unpredictability or the fear of infection from the delta variant.
In litigation, people cannot control everything, not the opposing side or its attorney, not the judge or jury, not the outcome or cost.
Some ignore the risk, believing in their own infallibility (perhaps like those people who won’t vaccinate or wear masks?).
Some look for other ways to take control.
One way is mediation.
In mediation, a key concept is self-determination. Another is informed decision-making. People can choose whether or not to engage in the process, learn more about their predicament and possible solutions, and make appropriate decisions for themselves as to settlement, if at all, and its terms.
Mediation thus presents the opportunity to take control of the situation, find certainty of outcome and the management of risk and cost. It is, in other words, where people can “gain, assume, or exercise the ability or authority to manage, direct, or influence” something otherwise risky, costly, and uncertain. Ibid.
However, during the pandemic, and considering the spike in the delta variant transmissibilty, that mediation might take place online. That is how this writer is conducting mediations at the present time.
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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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