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Voltaire was Right: Self Preservation is an Underlying Interest in Settlement.

July 2, 2016

A few months ago following a medical crisis, I started wearing a dog tag medical ID necklace.

I did not do this for its attractiveness, although the dog tag does have nice heft and it shows that nice EMT emblem known as the “Star of Life.”

Rather, I started wearing the necklace because it provides emergency personnel with engraved important medical information about me if something again should happen to me.

I wear this dog tag for my own self-preservation.

In mediation, I speak about self-preservation as well. Let me put this in context.

Conflict brings out tremendous emotion in people. Consequently, the mediation always starts with people stating or exhibiting their anger, outrage and so forth:

The plaintiff or claimant is outraged and demands justice from the defendant or respondent because of some real or perceived act or omission on the part of the defendant/respondent.

The defendant or respondent is outraged and wants justice because the defendant/respondent has bridled at being so wrongly accused of whatever bad act or omission has been claimed.

In both instances, both sides are full of venom for the other and believe they must start or continue on the path to trial over the dispute.

They assert their legal claims or defenses vigorously.

Moreover, they each believe they are right and they will win.

They overlook the risks and costs.

The disputants are caught up in the shortsightedness of a path toward possible self-destruction.

To reach resolution, they each need to be redirected away from their positions to focus on underlying needs, interests and priorities.

As the mediator, I am in charge of this redirection. See, https://karpmediation.wordpress.com/2011/06/16/serving-underlying-interests/

So sometimes I talk about 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.

As do most if not all mediators, I talk about the risk that the outcome is not guaranteed despite what people think, and that one side or the other will lose; and I speak about the consequences of not being right, i.e., not winning.

As do my colleagues, I also bring up the expense of the fight: I suggest that tremendous monetary (and emotional) resources will be eaten up, and those resources could be used elsewhere.

I am actually talking about self-preservation.

Sometimes this discussion changes the focus, so that flexibility and concessions will be forthcoming for the negotiation.

In consequence, disputants might realize that Voltaire was right (see above quote) and temper their demands and responses accordingly.

They might realize there’s too much risk going forward.

Or they might realize that they have another use for the money they might otherwise spend in the litigation.

Or they might realize that they do not have enough money to spend in the litigation.

Or they might understand that they need the peace that comes from settlement for their own health and well-being.

It is this shift in focus that brings about resolution if it’s possible.

It is the focus on underlying needs, interests and priorities that is so important.

Much more so than the legal positions of the parties, where everyone starts off in mediation.

So, here’s to self-preservation, the essential underlying interest in settlement.

Voltaire was right after all.

***

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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