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2018 Donations at Thanksgiving Time for Important Reasons

As you might know from prior posts in years past, it has become my custom and practice to make certain annual charitable donations just before Thanksgiving.

It is a good time to use my funds charitably for the (incidental) purpose of honoring friends, family, and business associates in lieu of sending commercial holiday greeting cards that end up in the recycling bin.

But there is always a more important purpose:

I believe it is everyone’s personal responsibility, including my own, to help “to repair the world” [Tikkun Olam] as and when we can do so and particularly when the need arises.

This year, we have had devastating news practically in our own backyard very recently, initially with the mass shooting of innocent victims at the Borderline Bar and Grill in Thousands Oaks, California, and then with the catastrophic wildfires of the so-called “Woolsey Fire” also in the same area and beyond.

In addition, our larger Jewish community is still reeling from the recent hate-filled shooting at the Tree of Life Synagogue in Pittsburgh.

Consequently, the decision on where to send my donations this year was simple:

First, to the ADL, which claims to be “the foremost authority on extremism, terrorism and hate, both foreign and domestic” and which “strategically monitors, exposes and disrupts extremist threats—on the internet and on the ground” (See, https://www.adl.org/what-we-do/combat-hate/extremism-terrorism-bigotry ); and

Second, to the California Community Foundation’s Wildfire Relief Fund, which “supports intermediate and long-term recovery efforts for major California wildfires, as well as preparedness efforts” (See, https://www.calfund.org/wildfire-relief-fund/ ).

To me, it is never a choice of 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 to help repair the world 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.

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

***

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 .

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New California State Bar Rules Addressed to Attorney-Mediators

On November 1, 2018, a new set of State Bar Rules of Professional Conduct will go into effect. Following are two specifically addressed to attorneys who are mediators [words followed by an asterisk are defined terms, see Rule 1.0.1], see http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/New-Rules-of-Professional-Conduct :

Rule 2.4 Lawyer as Third-Party Neutral

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons* who are not clients of the lawyer to reach a resolution of a dispute, or other matter, that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows* or reasonably should know* that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.

Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party
Neutral

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, judicial staff attorney or law clerk to such a person* or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed written consent.*

(b) A lawyer shall not seek employment from any person* who is involved as a party or as lawyer for a party, or with a law firm* for a party, in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator, or other third party neutral. A lawyer serving as a judicial staff attorney or law clerk to a judge or other adjudicative officer may seek employment from a party, or with a lawyer or a law firm* for a party, in a matter in which the staff attorney or clerk is participating personally and substantially, but only with the approval of the court.

(c) If a lawyer is prohibited from representation by paragraph (a), other lawyers in a firm* with which that lawyer is associated may knowingly* undertake or continue representation in the matter only if:

(1) the prohibition does not arise from the lawyer’s service as a mediator or settlement judge;

(2) the prohibited lawyer is timely screened* from any participation in the matter and is apportioned no part of the fee therefrom; and

(3) written* notice is promptly given to the parties and any appropriate tribunal* to enable them to ascertain compliance with the provisions of this rule.

(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

These new rules focus on important concepts including the lawyer-client relationship (of which there is none between mediators and participants in mediation) as well as on the avoidance of conflicts of interest (which has always been central to mediation practice). They are new to California’s Rules of Professional Conduct and do not have prior counterparts. On the other hand, they are common sense rules by which I and probably most of my colleagues who are professional mediators have naturally conducted ourselves previously.

***
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 .

Fear and Timing: Both are Motivators for Settlement

I had occasion the other day to think about Norman Rockwell’s depictions of Franklin Delano Roosevelt’s Four Freedoms: Freedom of Speech, Freedom of Worship, Freedom from Want, and Freedom from Fear. https://rockwellfourfreedoms.org/ . I did so because I was writing an article for my Masonic Lodge’s newsletter for November and referenced them in regard to Thanksgiving. (Freedom from Want shows an American family at the Thanksgiving dinner table with the hostess, maybe Grandma, presenting a large cooked turkey before carving.)

In preparation for this post, I looked again at Rockwell’s pictures, and especially Freedom from Fear. It shows Mom and Dad tucking their sleeping children into bed. Perhaps the image suggests safety, security, contentment, and the like, in other words the opposite of fear.

I have come to believe that fear is one of the great motivators of settlement in mediation although such motivation hinges on the timing of the negotiation as well. (Apparently, our President also believes that fear is a great motivator too. All one has to do is Google the words “fear” and “motivator” followed by his last name and one will find many interesting references. But I digress.)

Here is the role I believe fear takes in mediations that leads to settlement oftentimes:

People fear the uncertainty of outcome. No one can predict with certainty who will win, who will lose, how long it will take, what will be the toll, and so forth. Consequently, people may choose to settle to create certainty from uncertainty. One litigant told me he would lose a lot less sleep this way.

People fear financial ruin. Litigation is expensive regardless of outcome. After all, it was Voltaire who reportedly said: “I was never ruined but twice: once when I lost a lawsuit, and once when I won one.” See, Roston, L. (1994). Leo Roston’s Carnival of Wit: From Aristotle to Groucho Marx. New York, NY: The Dutton Group, p. 273. See also, https://karpmediation.wordpress.com/2016/07/02/voltaire-was-right-self-preservation-is-an-underlying-interest-in-settlement/

In one recent mediation, the claim was for breach of contract but there was no attorneys’ fees clause entitling the prevailing party to an award for the recovery of fees and costs expended. The parties realized that the case was more expensive to try than to settle and utilized the value of the attorney fees to settle – the plaintiff discounting the claim by how much it would cost, and the defendant agreeing to use the money for settlement that she would otherwise have been charged for the trial of the matter.

People fear loss of status or reputation. In another recent mediation, defendants acknowledged the risk to their business reputation as a consequence of either an adverse judgment or negative publicity and realized that the privacy of a mediated settlement would guard against those kinds of consequences.

Certainly, there are additional fears, but now, let’s talk about timing.

Timing is everything. People fear perceived danger more intensely when it is in closer proximity. The same is true in the negotiation.

In one recent case, a pre-litigation mediation took place because the parties’ contract required the mediation, and the opportunity to receive an award of prevailing party attorney fees was dependent upon the occurrence of the mediation. There, the parties were somewhat fearful of the cost and expense of pursuing or defending the filing of an arbitration or lawsuit. However, the outcome of the dispute was far in the future, too far away in time for them to be nervous about. This was a fairly short mediation and the dispute did not resolve then.

On the other hand, in another recent case, the trial date was about 120 days away and the lawyers had already given their clients their fee estimates and assessments for trial. That mediation took longer, almost all day, but the parties finally realized what they were facing sooner rather than later and chose to settle.

And then there was the recent short-notice mediation, scheduled to take place within only a few days of contacting the mediator (me), with a looming trial date only a very few weeks away. The parties knew going in that they needed to settle or face the consequences imminently, and they settled.

So, as it appears, a sense of fear of whatever kind may drive the settlement, but it depends sometimes on how imminently the perceived harm will materialize in relation to the timing of the 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 .

Written Disclosure by Attorney About Mediation Confidentiality, and Signed Acknowledgment by Client, Signed Into Law.

On September 11, 2018, Governor Brown signed into law Senate Bill No. 954 amending Evidence Code § 1122 and adding Evidence Code § 1129 regarding mediation confidentiality.

The Bill has the effect of requiring attorneys participating with clients in mediation to provide the client with a written disclosure about mediation confidentiality and to have the clients sign to acknowledge the same.

New Evidence Code § 1129 gives the required disclosure language as follows [see, http://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201720180SB954 ]:

Mediation Disclosure Notification and Acknowledgment

To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following:

• All communications, negotiations, or settlement offers in the course of a mediation must remain confidential.

• Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings.

• A mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body.

• A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation.

This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation.

I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent noncriminal legal action including an action against my attorney for malpractice or an ethical violation.

NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney.
[Name of Client] [Date signed]
[Name of Attorney] [Date signed]

I have been reliably informed that the above changes go into effect on January 1, 2019, pursuant to Govt. Code § 9600.

***

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 .

How Angiograms Are Like Mediation.

I had a coronary angiogram this week and have taken the week off from work.

I feel better today, and so I write.

If you don’t know, an angiogram is “a procedure that uses X-ray imaging to see your heart’s blood vessels.” See, https://www.mayoclinic.org/tests-procedures/coronary-angiogram/about/pac-20384904

Not to worry; I’m okay. I came through with fortitude and perseverance, and ultimately a good result.

Fortitude is “strength of mind that enables a person to encounter danger or bear pain or adversity with courage.” See, https://www.merriam-webster.com/dictionary/fortitude

Perseverance is “continued effort to do or achieve something despite difficulties, failure, or opposition.” https://www.merriam-webster.com/dictionary/perseverance

As a mediator, I know that perseverance and fortitude are some of the qualities that are needed for mediation too.

That is what made me start to think about the similarities between angiograms and mediation.

Here are some of the similarities:

Prior to the angiogram, I had a great deal of anxiety and reluctance to go forward with it; I am sure this is so for most participants in mediation too.

Then I had to negotiate where to start, whether via the femoral artery (groin) or the radial artery (wrist). The wrist was the lesser of two evils and the one chosen. But it was uncomfortable to start nevertheless, and uncertain.

In mediation it is often uncomfortable and uncertain for most participants, too, as they decide to start … either with introductory joint sessions or with separate, private caucuses.

As I said, an angiogram is a procedure that looks into the heart to see where the problems are, if any exist. This is what we do in mediation too.

One simply cannot get to a negotiated solution in mediation if we don’t find the cause of the problem.

In other words, we have to get to the heart of the matter. [ Insert <groan> here if you must. : ) ]

Then there’s the result.

In my case, the result was that the doctors ruled out any new or significant blockages or obstructions, or they would have sought to open the cardiac arteries with stents or other techniques available to them.

As mediators, we too have techniques to help the parties try to bypass or open blockages they face that may obstruct the path to peace.

And then there’s the recovery.

In both instances, it can take a few days for discomfort to wear off, there’s an acknowledgment that the experience is over, and there’s hope for better days ahead.

For the interventional cardiologist, and for us mediators, angiograms and mediations are minimally intrusive and often reveal pathways to better health and peace of mind, even though they both cause unavoidable anxiety in the process.

When I was in the “cath lab,” I thought about that pithy quote from the movie, The Best Exotic Marigold Hotel:

“Everything will be alright in the end so if it is not alright it is not the end.”

The same holds true for mediations.

***

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 .

Valley Bar Mediation Center Now Provides “Vendor Resource List” Mediations for LA Superior Court

[The following Press Release is posted as a professional courtesy.]

Los Angeles, CA – July 19, 2018 – The Valley Bar Mediation Center (“VBMC”) has been named one of two Los Angeles Superior Court Civil Mediation Resource List Vendors and now provides high-quality, low-cost mediations to all civil litigants through its panel of independent qualified attorney-mediators, pursuant to specific rules and guidelines established by the Court and the VBMC.

The mediators serving on the VBMC panel take time from their own private mediation practices on a limited basis to conduct “Resource List” mediations at reduced rates for the public good and to serve the needs of the Court litigants.

All independent mediators are lawyers with 10 years or more good standing with the State Bar of California and have met VBMC’s rigorous eligibility requirements including extensive mediation training and significant mediation experience in differing substantive areas of law.

According to Myer Sankary, Esq., Program Director, the Valley Bar Mediation Center was established in 2013, when the Court terminated its ADR program, as an independent 501(c)(3) non-profit charitable corporation to educate the public about the benefits of resolving disputes through mediation and to provide high quality, affordable mediation services to the public to reduce the burden on the Courts which has a backlog of civil cases.

“We have expanded our outreach for the benefit of the Court and its litigants through this new “Resource List” program,” said Sankary “and we receive no compensation from the Court, taxpayers or the mediators for administering this program.” Sankary explained, “therefore, we require a small per-party administrative fee to provide access to dispute resolution resources in selected cases.”

The Valley Bar Mediation Center also welcomes donations in support of its mission to help disputants throughout Los Angeles County to minimize or reduce legal fees and Court costs with early resolution of cases and to help reduce Court congestion and the Courts’ own overhead expenses of litigation.

The San Fernando Valley Bar Association encouraged and supported the formation of VMBC as an independent non-profit organization to educate the public and provide affordable mediation services to all citizens of Los Angeles County. VMBC’s board members include past and current presidents of the SFVBA.

More information about the “Resource List” program is available on the Court’s website at http://www.lacourt.org/ADR.Res.List and on the Center’s website at http://valleybarmediationcenter.com .

***

The above Public Service Announcement is brought to you as a professional courtesy via the Blog of David I. Karp. David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who has agreed to be a “Resource List” panelist occasionally at VBMC for the court’s benefit. His website is at http://karpmediation.com .

Stillness and Tranquility vs. Worry and Stress

Mad Magazine’s Alfred E. Neuman, whose famous phrase was “What, me worry?,” came to mind today as I was thinking about stillness and tranquility.

We all worry. And we have stress. I know I do from time to time. I had some this week but I won’t go into it.

Suffice it to say: Stress is well documented in the legal profession. See, https://www.americanbar.org/groups/lawyer_assistance/resources/stress.html . It is also a common phenomenon in mediation. See, https://karpmediation.wordpress.com/2018/03/16/mediation-as-a-stress-test/

Regardless, for all of us – lawyers and non-lawyers alike – we all worry about our health, our family members, our work, the economy, the country, politics, global warming, social injustice, you name it.

There is so much to worry about, it can be all consuming.

And worry causes stress, as you know, which is no good.

There must be a better way to get through life. That is why I was thinking about stillness, tranquility, serenity, peacefulness, and so forth.

When I feel stress, as we all do from time to time, I have to force myself to relax. Sometimes I go swimming or cycling. I have written about both before. See, https://karpmediation.wordpress.com/2017/07/16/mediation-is-like-swimming/ . See, also, https://karpmediation.wordpress.com/2016/08/18/cycling-is-a-lot-like-mediation/

Sometimes I listen to music. Others might do yoga or meditation. Those are not for me.

I also “stop and smell the roses,” as it were, by going outside, taking a walk, and looking at our natural surroundings. Today, in fact, I watched a hummingbird feeding and darting around, and that made me feel good.

But I also do a lot of thinking and reflecting, to move my mind away from the stressers of life.

And I write. I love to write.

I have a cousin who is a rabbi and he writes, too. He writes every Friday about Saturday’s Torah portion. He did so today, so I read through the Torah portion, B’haalot’cha (Numbers 8:1–12:16) for myself (but in English).

Actually, that didn’t help so much because I was reading a part about the Israelites in the desert complaining about the lack of meat. Frankly, I hear enough complaining from and about people and their circumstances when I am mediating.

So, I looked for something else on my bookshelf and turned to a favorite book of mine called Great Jewish Quotations, selected and annotated by Alfred J. Kolatch, Jonathan David Publishers – 1996.

In it, I found a quote of Abraham Joshua Heschel’s, from his Sabbath: Its Meaning for Modern Man (1975), which so touched me that I had to include it.

Here is the quote:

In the tempestuous ocean of time and toil there are islands of stillness where man may enter a harbor and reclaim his dignity. The island is the seventh day, the Sabbath, a day of detachment from things, instruments and practical affairs as well as of attachment to the spirit.

So, as we approach the Sabbath, let us, together, enter this harbor of stillness, say farewell to the vicissitudes and superfluities of the past week, and, without worry or stress, enjoy the tranquility that comes from the spirit within us. Shabbat Shalom.

***

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 .

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