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Mediation is like Swimming.

It is summer and I do laps in the pool for exercise. While doing so this morning I thought about how much mediation is like swimming.

In both…

Some people only dip in their toes to test the water, some wade in but tentatively at first, and some dive in with purpose.

Some people come alone and many come in groups; everyone brings a cell phone and sometimes a book to read.

Some people are willing to talk to the others at the pool or in the mediation; some are much less communicative and need their own space to get things done.

Some are very confident in the moment and some look as if they need a rescue from time to time.

Some will keep things covered up while others are more willing to show their true selves.

In any event, everyone wants to feel safe and no one wants to get burned.

In both mediation and swimming, people decide when to leave but many stay longer to use their time for their own self-interest and benefit.

In both mediation and swimming, there can be a certain amount of exhaustion but also a sense of satisfaction at the end if one has done what one came to do.

I love swimming and I love mediating. I continue to do both because I know that both ultimately relieve stress and both are good for the heart.

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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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Potential Exception to Mediation Confidentiality Looming

To my colleagues who practice law in California:

For quite some time, principally as fallout from the California Supreme Court decision in Cassel v. Superior Court, 51 Cal. 4th 113, 244 P.3d 1080, 119 Cal. Rptr. 3d 437 (2011), the California Law Revision Commission (CLRC) has been studying the relationship between mediation confidentiality and attorney malpractice and other misconduct.

Now, CLRC has tentatively recommended the creation of a new exception to mediation confidentiality.

According to the CLRC’s recent Press Release, “the proposed new exception is designed to hold attorneys accountable for misconduct in the mediation process, while also allowing attorneys to effectively rebut meritless misconduct claims.”

CLRC’s Press Release can be found here: http://www.clrc.ca.gov/pub/Press/Press-K402.pdf

Here is a link to the 162 page publication of the CLRC containing the recommendation: http://clrc.ca.gov/pub/Misc-Report/TR-K402.pdf .

The proposed exception is set forth in a proposed statute, Evidence Code Section 1120.5, set out on page 145 of the above publication.

In large part, the mediation community, including me, believes that the proposed exception, or any exception, to confidentiality may have a chilling effect on mediation, and diminish the possibility of settlements in mediation, as there is a risk people will not feel comfortable and speak candidly in mediation if they know that under certain circumstances what has been said and done in mediation may become admissible.

If you believe that the proposed loophole in mediation confidentiality, if it becomes law, may have a negative impact on your use of mediation as a tool for dispute resolution, you might contact the CLRC in that regard. The above Press Release seeks public comment by September 1, 2017.

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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 .

Preparing Well for Mediation

Mediation has become a primary means of resolving disputes in recent years, mostly to avoid the risk, expense and emotional drain of litigation. Mediation is not a casual encounter however:  it requires thought, presence of mind, and most of all advance preparation.

Many mediators have written about advance preparation. Many mediators have also observed, as have I, that sometimes there has not been sufficient preparation by the attorneys or their clients to make the most of the opportunity for resolution. [See related post for comparison.]

I try my best to prompt the advocates to prepare well.

I ask for mediation statements or mediation briefs. But I don’t want just legal argument. [See the related post and another .]  Instead to get to the heart of the process, I ask for these things in the cover letter I send out when convening the mediation:

• A brief summary of the factual background

• Important Points and Authorities if desired, but be brief

• A summary of the parties’ settlement history, including any dates and amounts of settlement proposals

• A statement of your client’s interests, needs, concerns and priorities regarding settlement [related post ]

• A statement of what you believe to be the interests, needs, concerns and priorities of the other parties; and

• A description of any obstacles to settlement and proposals for overcoming them. If you would like me to know something from you confidentially prior to the mediation, you may accompany the foregoing with a separate private letter to me. [See related post .]

With minor variation, this is the format utilized by the Appellate Mediation Panel, of which I am a member, at the California Court of Appeal, Second Appellate District, and I think this format is very helpful.

Of course, I ask what I ask and I get what I get. But I read everything I receive, more than once, in order for me to prepare well too.

Also, I ask that the mediation statement be shared in advance among all sides and not sent only to me, because I believe that the most important reader will be one’s opponent. If I receive the brief in confidence, I learn many things, but I can’t share the information – it’s confidential. So, if one is seeking concessions from the other side, the other side should know why (i.e., what the rationale is, what the risks are) and the best spokesperson for this is usually the advocate. [See related post .]

I also like to have advance private telephone conversations with each attorney, usually on the day before the mediation but after I have received and reviewed the mediation brief. [See related post .]

In that conversation, I can find out important things that maybe the attorney did not want to write about, particularly but not only if the mediation statement has been shared as requested.

In that conversation, I can ask:

• if the attorney has met, or will meet, with the client in advance to discuss the mediation;

• if the client has realistic or unrealistic expectations and what the attorney would like me to do to help manage those expectations [see related blog post and another ];

• if the attorney has given a realistic litigation budget to the client if the case does not settle;

• if the timing is right for mediation;

• if the right people (decision-makers) will attend in person and who else might attend and why [see related post ];

• what the attorney expects from the mediation and how to achieve those goals;

• whether there are client control issues and what help the attorney would like from me about them [see post ]

• what are the attorney’s or client’s feelings about a possible joint session and when and how that session might take place [see the related post ]

• and so forth.

Usually I send out correspondence a week or so ahead of the mediation to prompt the timely submission of the mediation statement and to arrange the above private telephone call.

Along with that letter, I also send out a useful handout from the Court of Appeal’s mediation program, which I find helpful in all mediations. I ask that the document be shared with the clients. I don’t usually know if the client actually sees it, but it is another prompt in favor of preparation.

I think about the mediation as well, well before it takes place, but mostly as a result of the input I have received in advance. Also, I like to arrive early, sometimes 30 minutes to one hour before the mediation, so I can look over the papers again, get situated in the conference room, and plan how the mediation might get started and what I will say to each side, whether jointly or separately.

Occasionally, I will stagger the arrival time if I have perceived from the phone call or otherwise that one side needs more time with me privately at the outset than the other.

Usually, if the parties and their counsel are well prepared, as I know I will be, a productive mediation will take place and maybe a settlement will even come about as a result if that is what the parties ultimately decide. [See related post .]

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

That Great Sense of Relief

After my visit with my cardiologist today, I felt a great sense of relief. I received very high marks, so to speak, for the improvements in my health following last year’s (mild) heart attack.

The improvements came from significant changes in lifestyle, including diet and exercise, among other things.

My own relief today reminded me of that same sense of relief that I perceive litigants feel too when they have settled their disputes in mediation.

Some of the definitions of “relief” that I found on the internet today include these:

• “A feeling of reassurance and relaxation following release from anxiety or distress.” See, https://en.oxforddictionaries.com/definition/relief

• “The alleviation of pain, discomfort, or distress.” Id.

• “A feeling of happiness that something unpleasant has not happened or has ended.” See, http://dictionary.cambridge.org/dictionary/english/relief

• “Removal or lightening of something oppressive, painful, or distressing.” See, https://www.merriam-webster.com/dictionary/relief

Some people even leave the mediation, after settling, saying “I’m glad that’s over,” or “I’m happy it is over,” or words to that effect.

Getting to that point can be stressful and difficult however.

Sometimes, in private caucus, to move the parties toward settlement, I suggest or ask the fretful person with the hard decision to make:

“What would it be like for you not to have to wake up in the middle of the night still worrying about what might happen?”

Or,

“If the dispute were over, what could you do with the time/money/energy you would otherwise spend pursuing the litigation?”

Or, I might ask other questions involving improving the quality of one’s life or lifestyle if the dispute were over.

I do think that there are positive health benefits to be gained from settlement.

As mediators, sometimes we also need to remind people of that great sense of relief they may feel after putting the litigation behind them.

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David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

Idioms and Risky Moves in Mediation

Always fond of English language use, I sometimes turn to a reference book that has been on my library shelf for many, many years.

The book is called The Morris Dictionary of Word and Phrase Origins, edited by William Morris and Mary Morris (1977, London: Harper & Row, Publishers).

It was given to me by a college friend long ago.

I still refer to it from time to time because I think about idioms in my work as mediator.

Two of my favorite idioms came to mind in a [fictionalized] mediation when one side tried a negotiation move that backfired in the mediation session.

Let me just quote from the book for you.

Penny wise and pound foolish, dating back at least to the time of Shakespeare, describes a person so concerned with minutiae that he loses track of truly important considerations….

Hoist by his own petard means “destroyed by his own trickery or inventiveness.” A petard, in medieval warfare, was an explosive charge which daring warriors would affix to the walls or gates of a castle under siege. This action in itself was a most hazardous one, but the greatest danger came after the petard was in place. The explosive was detonated by a slow match or slowly burning fuse. Occasionally, of course, the explosive went off prematurely, in which case the warrior was hoist (lifted or heaved) by his own petard. It is unlikely that this archaic phrase would have persisted in our language, even in a figurative sense, had not Shakespeare conferred immortality upon it with this line from Hamlet: “‘Tis the sport to have the engineer hoist with his own petard.” Today it is chiefly used to describe a person ruined by plans or devices with which he had plotted to ensnare others.

So, why did these idioms come to mind?

Well, I’ll tell you.

At the last minute, after hours of back and forth negotiation, a disputant decided that he wanted just a little bit more from the other side than was offered, instead of saying yes to the offer that was well within his so-called zone of possible agreement. (See my related post at https://karpmediation.wordpress.com/2014/06/19/expect-the-unexpected-everything-is-a-strategy/)

Forewarned that this might be a risky move after such a grueling day of tiring negotiation, the disputant nevertheless insisted that the counteroffer be communicated in the other room, which was done. However, the counteroffer was angrily refused by the side that was clearly worn out by the lengthy negotiaion, the briefcases were slammed shut, and the other side impatiently left the mediation in a huff. (On when and how to say yes or no in a negotiation, See Wheeler, M. A. (2013) The Art of Negotiation: How to Improvise Agreement in a Chaotic World. New York: Simon & Schuster.)

It might have been that it was penny wise and pound foolish for the responding party not to stretch a little to meet this higher demand and make the deal then and there even though late in the day and beyond the party’s expectations … or, at least, to check his emotions, take a deep breath, and say “no” in a more constructive way to allow the mediator additional time to help close the deal.

On the other hand, it might have been that the demanding party would have been hoisted on its own petard because the mediation session ended without any agreement at all.

The good news is that the deal was saved later in the week via telephonic intervention by the mediator (see the related post at https://karpmediation.wordpress.com/2013/10/11/following-up-and-the-importance-of-being-earnestly-persistent/ ).

The other good news is that my reference book is still available in my library so I may consider what idioms might apply in another forthcoming mediation!

***

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 . Please email him at davidikarp@karpmediation.com if you have a favorite idiom you want to share.

Credibility and Bravado

As I read today’s news, I was reminded of a blog post I wrote some time ago about bravado. There I wrote, in a slightly different context, about boasting, proffering outrageous claims, or otherwise making exaggerated shows of strength, courage or defiance; but it is the effect on credibility that reminded me of the post.

Anyway, I was reminded about bravado in mediation as I was reading about today’s Gallup poll, entitled “Majority in US No Longer Thinks Trump Keeps His Promises” .

The poll suggests that President Trump lost 17 percentage points on the question of whether people believe that he keeps his promises. The report indicates that “45% say Trump keeps his promises, down from 62% in February.”

The poll also suggests that President lost six percentage points on the question of whether he is honest and trustworthy, down from 42% in February in 36%.

So what does this have to do with my post about bravado?

I think the answer goes to whether boasting or making wild unsupported or unsupportable claims makes them believable, whether they help to support a disputant’s position, or whether they actually undermine credibility.

I think it is the latter. Moreover, the Gallup poll suggests to me that actually it may make matters even worse, especially where one side is already at odds with the other and doesn’t believe the other side in the first place:

Whether young or old, Democrat or Republican, male or female, Americans are less likely now than they were two months ago to think Trump keeps his promises. But the declines have been greater among subgroups that tend to be less supportive of Trump, including Democrats, liberals, women and young adults. Among those who disapprove of Trump, 35% said in February that he keeps his promises; only 11% say so now.

Thus, I believe that bravado in mediation — including boasting, proffering outrageous claims, or otherwise making exaggerated shows of strength, courage or defiance —  undermines credibility, especially in the eyes of the other side, and particularly when those statements are perceived or turn out not to be true, or the positions are not sustainable or even realistic — as with some of the statements and positions of Mr. Trump as described in the reporting of the poll:

In the two months since [the February poll], however, Trump appeared to walk away from repealing the Affordable Care Act after Republicans failed to agree on the healthcare replacement bill that Trump stood behind. Political friends and foes alike have complained that Trump is not carrying out the promises he made on the campaign trail. Supporters have expressed unhappiness that more has not been done on taxes and immigration, in addition to healthcare. Opponents say he has not protected middle- and working-class Americans.

What do you think?

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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 .

Today’s Senate Action: Positional or Interest Based?

In mediation, sometimes litigants and their attorneys focus mainly on their legal positions, which might be the polar opposites of positions held by the other side, leading to impasse. Instead, the disputants could, and sometimes do, hone in on their underlying interests, which by contrast might allow commonality with the other side and lead to a satisfactory conclusion of the dispute.

I have written about this in greater detail previously at https://karpmediation.wordpress.com/2011/06/16/serving-underlying-interests/

Against the above backdrop, I have been looking with considerable fascination at the drama surrounding the confirmation of Judge Gorsuch for a seat on the United States Supreme Court.

Today, against the intransigence of the Democrats to end debate or allow “cloture” to permit a vote on the confirmation, the Senate, led by the Republicans, simply changed the rules, lessening the requirement to 51 from 60 votes to move ahead with confirmation.

See, https://www.washingtonpost.com/powerpost/senate-poised-for-historic-clash-over-supreme-court-nominee-neil-gorsuch/2017/04/06/40295376-1aba-11e7-855e-4824bbb5d748_story.html?utm_term=.6277687568f6

I understand the position held by the Democrats in refusing to allow a confirmation vote, and their anger over the Republicans refusing to allow even a hearing in furtherance of Judge Merick Garland’s nomination by President Obama last year.

See, http://www.huffingtonpost.com/entry/merrick-garland-neil-gorsuch-scotus_us_58e554e9e4b06a4cb30ee0c3

I do not understand, from an interest based point of view, why they risked the so-called “nuclear option” of the rule change.

Neither do I understand the long term, interest based benefit, if any, for the Republicans in eliminating the filibuster and allowing confirmation by simple majority.

What happens later when the pendulum swings back from the right to the left ?

This move seems short sighted to me. I guess it is because they want President Trump’s nominee, Judge Gorsuch, at all costs and/or want to show the Democrats who’s in charge.

But are they all shooting themselves in the foot by eliminating the 60 vote requirement and thus eliminating any need to work together in the future?

Again, what happens later when the pendulum swings back to the left from the right?

Are compromise, conciliation, consensus, and collegiality dead in the Senate, now? And in the future?

I guess we will have to wait and see.

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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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