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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.

***

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

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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?

***
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.

***

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 .

Conflict, Disagreement, Kindness, Respect

I have chosen a profession in which disagreements abound. The conflicts I see in mediation are often fueled by high emotion. In the words of William Butler Yeats in The Second Coming, the participants are “full of passionate intensity.” This is to be expected in the professional world of dispute resolution.

Unexpectedly, lately I have seen such “passionate intensity” infect our social media, our television and radio, our conversations in the streets and elsewhere, all as people react to current political issues.

On Facebook today, I saw that one person was complaining that she was unfriended by another with whom there is political disagreement. They had been close friends, apparently, for years, but their civil discourse became so uncivil that one terminated her online relationship with the other.

Now people argue on Facebook all the time, with neither ever convincing the other. But the arguments often devolve into fierce and painful insult.

This is just not right.

Jan Frankel Schau, an inspiring colleague of mine, wrote recently about kindness in mediation.

See, http://myemail.constantcontact.com/My-Mother-s-Legacy—Approaching-Conflict-with-Kindness.html?soid=1102092773045&aid=VYe6s3cqybE

In this piece, Schau observes, that, at the end of the mediations she was describing:

the lawyers shook hands, thanked one another for their cooperation and expressed their appreciation of the other’s approach to a difficult negotiation. It was, in fact, reassuring that even as our Country seems to be in such a crisis, civic discourse took place in conference rooms instead of court rooms. Imagine that!

Well put.

In a PS to the piece, Schau paid homage to President Lincoln on this Presidents’ Day Weekend, by offering a famous quote of his about settling cases:

“Discourage litigation. Persuade your neighbors to compromise wherever you can. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”

I would go further on this Presidents Day.

I would suggest that people take heed of George Washington’s 110 Rules of Civility.

See, http://www.npr.org/templates/story/story.php?storyId=1248919

Although “[m]ost of the rules are concerned with details of etiquette, offering pointers on such issues as how to dress, walk, eat in public and address one’s superiors.” they all flow from the first:  “Every action done in company ought to be with some sign of respect to those that are present.” Id.

I would add that such respect is due to others, wherever and whenever, whether in mediation or on Facebook.

Respectfully wishing you a good, thoughtful and reflective Presidents Day today.

***

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

What if there’s Someone with a Mental Health Condition in the Mediation?

Given the news of late, I have been thinking a lot about people with extreme behaviors. One term I have heard or read about lately is “narcissism.”

I am not a psychotherapist and I really only know what the internet tells me about narcissism, but here is something I found when I looked:

According to Psychology Today (see, https://www.psychologytoday.com/conditions/narcissistic-personality-disorder), Narcissistic Personality Disorder is defined this way:

The hallmarks of Narcissistic Personality Disorder (NPD) are grandiosity, a lack of empathy for other people, and a need for admiration. People with this condition are frequently described as arrogant, self-centered, manipulative, and demanding. They may also concentrate on grandiose fantasies (e.g. their own success, beauty, brilliance) and may be convinced that they deserve special treatment…. [¶] … Individuals with NPD seek excessive admiration and attention in order to know that others think highly of them. Individuals with narcissistic personality disorder have difficulty tolerating criticism or defeat, and may be left feeling humiliated or empty when they experience an “injury” in the form of criticism or rejection.

So, what do we do if we figure out that someone, who might fit this description, is in a mediation with us?

William A. “Bill” Eddy, LCSW, Esq., affiliated with the High Conflict Institute (see, http://www.highconflictinstitute.com/ ) seems to have some suggestions.

Eddy refers generally to individuals like this as High Conflict People (HCPs). He adds that these HCPs, generally have these traits: “a preoccupation with blaming others; all-or-nothing solutions; unmanaged emotions; extreme behaviors. (See, Times of High Risk with High-Conflict People at http://www.highconflictinstitute.com/articles/new-ways-for-families-articles/78-hci-articles/published-articles/150-high-risk )

In the same article he suggests this:

“[G]iving them negative feedback tends to increase their negative behavior (including intensely blaming the person who gave them the feedback) rather than leading to insight. For this reason, it’s important NOT to tell someone that you think he or she is a high-conflict person.” Id.

That’s all well and good, but what DO we do?

In another article of Eddy’s, this one entitled Talking to the “Right Brain” in a Conflict, (see, http://highconflictinstitute.com/images/pdfs/talkingtotherightbrain.pdf), published originally in ACResolution Magazine, Summer 2011), Eddy suggests that we “resist the urge to confront” the person.

(By the way, this is a really great article, thank you Bill Eddy. I keep a copy of it with me for reference and I recommend that every mediator read it.)

In the article, Eddy offers this: Use empathy, attention, and respect, to acknowledge the individual and then focus the High Conflict Person on logical problem solving, as in asking the HCP actually to make a proposal.

But what if it doesn’t work?

We mediators are not psychotherapists (most of us anyway), and ultimately, we must “do no harm,” as the saying goes.

If we unable to redirect the High Conflict Person to think logically and to focus on problem solving, I believe that we would need to adjourn/recess/end the mediation, especially if, as a consequence, we have determined that it would be unproductive or harmful to continue. (See, https://karpmediation.wordpress.com/2012/02/01/what-if-its-a-mental-health-issue/ ).

There are no easy answers to the question posed in the title of this piece. The least we can do is to be attuned to the possibility that the issue could arise.

If it does, we should try to help in the manner suggested if possible, and in any event, we should act as best we can to preserve the integrity of the mediation process and the dignity of all of the participants in it.

***

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 .

Finding Ways to Accommodate One Another

In mediation, people do find ways to accommodate the needs and interests of one another in order to resolve their disputes.

To prompt this occurrence, I often say that “one has to give up something to get something.”

A simplified example would be that in order to agree on a larger sum to be received, one might have to agree to a payment schedule that allows the payor to manage the expense over time.

There are other accommodations to be made in mediation which have nothing to do with the settlement agreement to be negotiated.

These are personal accommodations.

As I write this, I am thinking of a recent mediation in which one of the participants needed accommodation for her wheelchair.

To make room, other participants willingly and generously moved obstacles from the conference room, including chairs, boxes and other things.

In another mediation, one party brought cookies. Maybe it was a peace offering.

I have often given facial tissues, or excused a person to get some fresh air, when I have perceived that someone is visibly upset and needed some emotional space.

People have accommodated me, as well, when I have had to change a hearing aid battery in the midst of a significant conversation.

Thankfully, there is an underlying generosity and kindness in all of us, even under the most intense of circumstances, as in mediation.

It is a welcome sight when even ardent opponents find ways to accommodate one another on a personal level.

Ultimately, too, it helps to encourage peacemaking in the 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 .

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