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A Moral Dilemma, A Creative Outcome – A Fictional Account

November 2, 2014

[This is fiction, a Bubbe Meise for those who know the phrase.]

The commercial grower’s representative sits in one conference room for the mediation along with his litigation counsel.

The defendants, a poor old pious man and his frail dying wife, sit in another room with their Pro Bono attorney.

The complaint alleges a wilful and malicious trespass onto the plaintiff’s agricultural fields, the taking of fruit from the trees, consequential damages for a broken irrigation pipe, punitive damages, and injunctive relief.

The plaintiff’s representative explains to the mediator in private:

“We have a strict corporate policy of prosecuting people who steal our crops, no matter what. We do so to send a message: we are not a charity, we are commercial growers in business for profit. If we let these defendants get away with what they’ve done, we are opening the doors to let everyone get away with similar conduct.”

One of the defendants in the other room explains to the mediator in private:

“We are old. We are not well. We can’t work anymore. We have no real money, just social security. We were driving and our old car, which is our only real asset anymore and which we still need and cannot replace, broke down again. We hadn’t eaten and my wife was very hungry. While we were walking to get help, we saw this orchard. It looked like it had already been harvested. Some of the fruit was still on the branches and some laying on the ground. I thought to pick up some fruit for my hungry wife. On my way to do so, I am sorry, but I tripped on a water pipe and hurt myself. Maybe I broke the pipe. I don’t know. If I did I apologize. I was only trying to get my wife some food. I didn’t think she would last much longer.”

The conversation continues and the wife asks, “what do they want?”

“They want to enforce their policies, they want to send a message, they want you not to do what you did, they want you to stop and they want some money.”

The husband suggests: “That’s mishuga. You know, the Good Book says [Leviticus 23:22], ‘when you reap the harvest of your land, you shall not reap all the way to the edges of your field, or gather the gleanings of your harvest; you shall leave them for the poor and for the stranger.’” [See, .]

The husband suggests: “So, maybe they’re not right to make this claim and we shouldn’t owe anything … but maybe I can help patch up the water pipe, I was a plumber when I was younger.”

The mediator takes the suggestion into the other room. It is rejected.

There is some more back and forth between the rooms but the negotiation is going nowhere.

Finally, an idea emerges:

“Can you agree not to go on the land anymore? And then in the fairly near future, when you’re no longer willing/able to drive and/or the car is no longer fixable, can you agree to sell the car for whatever you can get for it and give the money to the grower? If you can do this, then maybe the grower can agree to use a portion of the proceeds as reimbursement for the water pipe repair and then make a donation of the balance to an agency that will use the money to feed the poor. Maybe then everyone can benefit just a little. Will this work for you?”

The couple agrees if the grower also agrees.  The commercial grower’s representative says he will recommend it to his superiors.

The mediation ends.

And so does this story.


David I. Karp is a full time mediator of real estate and business disputes in Southern California who mediates “at the heart of the dispute” and who looks for creative outcomes if they are possible. See .

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