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Making Concessions is not Losing.

August 24, 2016

I had a conversation today with Mark Tseselsky, an insightful family law attorney who understands the psychology of his practice. Although framed in the family law context, different from my own real estate mediation practice, his observations were “spot-on” relative to mediation generally.

For his clients, angry marital couples already embroiled in longstanding arguments over this or that, where winning is everything, the thought of making concessions or coming to a settlement in a mediation, is seen as losing and is therefore intolerable …

At least, until the client has had a contested issue come up and/or begins to understand that he or she may not get everything that he or she wants in court …

Or until the lawyers bills start coming in…

Or both.

That’s when the idea of mediation or settlement comes to mind.

In other words, when litigants begin to understand the risks and costs facing them, that’s when mediation may become more palatable.

In ANY mediation, compromise is essential; it is not “losing.” Compromise is the way to mitigate potential risks and costs. It is the essence of a negotiated settlement.

To mitigate this sense of losing, however, compromise must be couched in terms of preserving dignity. I have written about this before. See,

There I wrote, among other things:

“On the most simplistic level, when both sides compromise or give in to the other, each has recognized the possibility that the other might be right and has honored the other by acknowledging that there are two sides to every story.”

Putting compromise in this context is where the mediator and competent counsel can help, and by making the connection between compromise and giving respect, the parties may be better able to come to, and tolerate, a negotiated outcome.

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at .


From → Mediation

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