Social Action in the Settlement of Private Disputes
I grew up in a tradition that emphasizes actions speaking louder than words, with an overall goal of “repairing the world” (Tikkun Olam).
An example, in today’s Torah Portion, Ki Tavo (Deuteronomy 26:1 – 29:8), recalls our obligation to share the bounty of our land with others including strangers, the fatherless, and the widow.
The concept of repairing the world, or undertaking social action, requires one to look beyond self interest to the interests of others, not just another person’s interests but also the society’s interests as well.
In mediation, no case can settle unless each person looks beyond the self. Each person must take into account the interests of other in the dispute, and work to satisfy those interests to make the deal.
In an extremely selfish society – sometimes I just shake my head privately at the “It’s all about me!” attitude of some individuals today – this is extremely difficult.
It is also extremely rare when “social action” (I use this phrase lieu of “charity”) becomes a part of the discussion in mediation and then part of the solution.
This requires going beyond understanding the interests in the room to seeing the bigger picture.
It requires a much greater degree of unselfishness than one would expect in the resolution of a dispute.
In a real estate mediation of several years ago, two wealthy neighbors were embroiled in a dispute involving the alleged impact of defendant’s construction on plaintiff’s real property rights.
It is a long story, the details of which will be omitted, but it turned out in the mediation of this dispute that compensation ultimately wasn’t the issue for the plaintiff. It was the principal of the thing.
The mediation had lasted a long time, the back and forth of negotiation had gone nowhere, and we were stumped as to how the case would settle.
Ultimately I perceived that the wealthy plaintiff (who didn’t need the money, he said) saw the settlement payment as a tax for the defendant’s privilege of undertaking the construction without first seeking the plaintiff’s permission.
The defendant was willing to pay some money to get the dispute resolved and to continue with his construction, but he wasn’t going to pay his neighbor a dime in tribute or otherwise.
Since payment was the key, not the recipient, ultimately I suggested that a donation be made to the American Red Cross by one in honor of the other to help the victims of a recent devastating hurricane.
This apparently served the interests of both sides, and both sides agreed. Money would be paid by the defendant but not to the plaintiff, construction could resume without objection, and both sides would feel great that they were helping hurricane victims.
What was so satisfying at the end of the day was the parties’ collective unselfishness in the resolution (one side paying, the other side giving up receiving); and they saw beyond their own predicament and helped to “repair the world.”
In the right circumstances, social action can be incorporated into the resolution of private disputes.
And although rare, it is a glorious way to achieve a settlement.
David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com
From → Mediation