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Disagreeing with Franklin: Making One’s Best Deal Even When Necessity Drives the Bargain.

July 2, 2013

I admire Benjamin Franklin.

I have read and thoroughly enjoyed a biography about him and have written about him before.  See, https://karpmediation.wordpress.com/2011/08/24/when-people-cannot-get-past-having-been-insulted-sometimes-its-war/

I thought of Franklin today in the context of the Declaration of Independence; it is nearly the Fourth of July.

At its signing, Franklin famously said, “We must all hang together, or assuredly we shall all hang separately.”  See, http://www.ushistory.org/franklin/quotable/singlehtml.htm

I like that quote.

While I was looking for it, however, I came across two other pithy sayings of Franklin’s, about which I have chosen to write instead.

I agree with the first wholeheartedly but not the second entirely.  See below.

As it relates to making settlements in mediation, I like this quote very much:

“There was never a good war or a bad peace.”  Id.

I take issue with the second, however, at least in some respects:

“Necessity never made a good bargain.”  Id.

Sometimes recognizing necessity actually helps litigants settle and results in the best deal they can get under the circumstances.

Necessity comes in many forms: a litigant cannot afford the litigation; the litigant might almost certainly lose; there is too much emotion involved; the litigation is destructive of one’s life, health, business or reputation; the litigation will not provide the relief sought; and so forth.

Recognizing such necessity is key and this is where the mediator can help.  In private caucus, the mediator can lead a discussion which focuses on these needs.

To have such a candid discussion of necessity is to move the litigant away from his or her wishful thinking about the case, to give the opportunity for a reality check, to redirect the focus from war to peace.

Necessity is thus an underlying interest that must be served in making one’s best deal under the circumstance.

And when one makes his or her best deal under the circumstances, the litigant has not made a bad bargain regardless of what Franklin said.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California.  More information about him is available at http://karpmediation.com .

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