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Alternative Facts in Mediation

This weekend, in the news, we learned about “alternative facts” when the new President’s adviser tried to explain alleged falsehoods given by the new Press Secretary for the President.

CNN reported: “White House press secretary Sean Spicer’s false claims about the size of the crowd at President Donald Trump’s inauguration were ‘alternative facts,’ a top Trump aide said Sunday.”

See, http://www.cnn.com/2017/01/22/politics/kellyanne-conway-alternative-facts/index.html

In mediation, opposing parties often tell different stories about the same incident or occurrence.

Often one party calls the other “a liar” in this context.

I never like that label, although sometimes it may be fitting.

Nevertheless, I refer to these competing views of the same things as “different truths” which are based upon people’s own perceptions of themselves, the event, the other person, and the causes and consequences of what happened or did not happen.

Often people don’t lie deliberately; they just see things differently.

As a mediator, I tell people that, out of respect for both sides, I will accept different truths as truths on both sides because, in mediation, it is not the “truth” in the ultimate sense of the word that matters.  Rather, it is the “perception of the truth” which is important to the person who proffers it and to the one who hears it.

When perceptions of the truth conflict, the judge or jury will have to sort out the real truth (the emes in Yiddish) if the matter comes to trial.

On the other hand, I tell people, it is the risk that you won’t be believed, and that the other side will be believed, that you must consider when trying to resolve the dispute, for mediation is the place to manage risk.

This does not excuse falsehoods or patent untruths; it simply allows disputants to move past them to resolve their disputes if they can.

On the other hand, it is inexcusable when a new administration proffers the label, “alternative facts,” to minimize easily disproved falsehoods that come from a President and White House press secretary.

There is no getting past that.

***

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 .

Mediations Are like Crossword Puzzles.

I love mediation and I love crossword puzzles. To me, they are very much alike.  In both:

• We bring our prior knowledge and experiences to bear.

• Focus is usually required.

• There are many clues that lead to a solution.

• Some things we already know and we can fill in the blanks.

• Some clues can be obscure and one must really think.

• Some clues may never be understood.

• It takes time to find the solution.

• Sometimes the answers are readily apparent.

• Sometimes the answers are frustratingly difficult and hard to grasp.

• Sometimes the first answer is not the best answer and one must try again.

• Sometimes one has to fill in the spaces around the missing answers in order to figure them out.

• The answers always intersect.

• The greater the number of people at work on the solution, the greater the likelihood of success.

• Sometimes one must leave it for later.

• It is always worth it to return and try again.

• If this one doesn’t work out, there’s always another.

• When the solution is complete, it feels great.

• It’s also okay if most or even part of the puzzle is solved, if that’s the best one can do at the time.

Before I start a mediation I nearly always work on a crossword puzzle first. I also carry several with me in my briefcase.  Feel free to ask if you’d like to try one too.

***

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

An Alliance of Hope

These are the [translated] words of Prime Minister Shinzo Abe of Japan, standing with President Obama at Pearl Harbor yesterday:

“Ours is an ‘alliance of hope’ that will lead us to the future.

“What has bonded us together is the power of reconciliation, made possible through the spirit of tolerance.”

See, http://www.nytimes.com/2016/12/27/world/asia/shinzo-abe-text-pearl-harbor.html?_r=0

These are powerful words, magnificent and magnanimous.

As a mediator, I see a lesson here for any one still harboring ill will, for something that someone did or failed to do that led to conflict, whether in a mediation session or in life.

Although there was no formal apology, these are words of heartfelt forgiveness for the past and hope for the future.

In his speech, Prime Minister Abe also said:

Japan and the United States, which have eradicated hatred and cultivated friendship and trust on the basis of common values, are now, and especially now, taking responsibility for appealing to the world about the importance of tolerance and the power of reconciliation.

That is precisely why the Japan-U.S. alliance is “an alliance of hope.”

Let there be an alliance of hope in the New Year for each of us, professionally and personally, as we take responsibility for our thoughts and actions and as we go forward to wrestle with and conquer the conflicts that keep people apart.

***

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

A Story about Guillermo

Last night was the first night of Chanukah and also Christmas Eve. For various reasons including illnesses in the family, my wife and I ate dinner at a local restaurant that we frequent.

Guillermo (not his real name) was there. He has been a busboy at that restaurant for many years.

In my mind, the term “busboy” is demeaning, especially for a person like Guillermo who is perhaps in his 40s or 50s.

But I suppose “busboy” is the job description for such an unskilled laborer who assists the waiters, clears the dishes and cleans and sets the tables.

It is likely a minimum wage job.

I do not know much about Guillermo except that I know he works at several restaurants and has two or three jobs concurrently to support himself and his family. I have seen him elsewhere.

I do not know his immigration status and it is none of my business, although I certainly fear for him now that things have changed politically.

Guillermo is one of the hardest workers I have ever come across. He is quick, efficient and diligent, respectful of customers, and so industrious and dedicated to his job.

At the end of the meal, I approached Guillermo privately, as I have done in past Decembers, and discreetly handed him some cash, wishing him a Merry Christmas.

“I always appreciate how hard you work,” I said to him.

I received a huge smile and a warm embrace in return.

In Wikipedia, the concept of dignity expresses “the idea that a being has an innate right to be valued, respected, and to receive ethical treatment.” See, https://en.wikipedia.org/wiki/Dignity

I suppose that is the moral of this story.

***

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 .

They Did Not See Eye to Eye.

I looked up the idiom “seeing eye to eye” and found this today:

“Agree completely, as in I’m so glad we see eye to eye on whom we should pick for department head. This expression appears in the Bible (Isaiah 52:8).”

See, The American Heritage Dictionary of Idioms by Christine Ammer. (2003, 1997). Retrieved December 10 2016 from http://idioms.thefreedictionary.com/see+eye+to+eye

I also looked up its opposite:

“The phrase ‘see eye to eye’ is used to mean when two people or two parties agree when it comes to a certain topic. But, the phrase is often used as ‘we didn’t see eye to eye’ or ‘they couldn’t see eye to eye,’ in which case it means something about how two people or parties could not come to agreement on a specific topic, or they just couldn’t agree in very general terms because they didn’t like one another.”

See, http://www.programmerinterview.com/index.php/american-vocabulary/see-eye-to-eye-meaning/

In a recent mediation, which ended without agreement, the parties did not see eye to eye, perhaps because they did not see each other, at all.

That is, one side simply would not agree to meet in person with the other side, to hear or consider the latter’s personal views on the subject of their disagreement.

Perhaps this decision not to meet together – for an opportunity to listen and learn – protected this one side from certain contradictory information which might have impacted its position.

In Cognitive Barriers To Success In Mediation: Irrational Attachments To Positions And Other Errors Of Perception That Impact Settlement Decisions, available at http://www.mediate.com//articles/PR_CognitiveBarriers.cfm , the authors, Bennett G. Picker and Gregg Relyea, refer to this phenomenon in at least three ways:

Cognitive Dissonance. This bias refers to the fact that it is psychologically uncomfortable for most people to consider data that contradicts their viewpoint. Disputants and their attorneys tend to resolve conflicting information by justifying their own conduct, blaming others, and denying, downplaying, or ignoring the existence of conflicting data.

Assimilation Bias. The tendency of individuals to see or hear only that information that favors their position is called “assimilation bias.” Victims of assimilation bias behave as if adverse information was never presented to them.

Inattentional Blindness. We tend to see/hear only that which we are focused on…. Similarly, many parties and their counsel fail to see and assess the “big picture” (e.g., overall case value, themes of a case, jury appeal factors, witness appearance) because they are focusing sharply on other specific points.

But what if, in addition to the private caucuses of the day, the parties had come together for a person to person exchange of information and ideas?

Both sides might have learned something new about the conflict, and perhaps they may even have found a way to resolve it.

But they chose not to come together, which is their right inasmuch as it is their mediation.

Consequently, they did not see eye to eye perhaps because they would not.

And thus, an opportunity may have been missed.

***

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 .

2016 Letter re Donations in Lieu of Holiday Cards

To My Friends, Family, Colleagues and Business Contacts:

It has become an annual custom of mine to make charitable donations at this time of year in honor of family, friends, colleagues, and business contacts.

I do this:

• in lieu of buying and mailing commercially available business and personal holiday cards;
• to extend my best wishes for the upcoming holiday season; and also
• to fulfill what I believe to be a social responsibility in any event to help repair the world (Tikkun Olam).

As I have written before, I see these donations as a way to put humanity back into the season … and also as a way to voice my own personal objection to the din of holiday television and radio commercials and the wearying retail and commercial blather we will face through the end of the year.

Current events usually dictate where I send my money. This year I have made two donations in your honor:

(1) to the “JFS { SOVA Thanksgiving Virtual Food Drive;” to fight hunger; and

(2) to the Anti-Defamation League, to fight hate.

In making these donations, as I have said previously, I wish for peace, contentment, good health and well being for each of us and for all those in distress and/or at risk in our communities and around the world.

I also wish for less hunger, more tolerance, and the compassion that supports both.

Sincerely,

DAVID I. KARP

***

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

Civility and Its Opposites

I have been thinking about civility and its opposites again.

I was reminded of these concepts yesterday at the annual conference of the Southern California Mediation Association.

Early on at the conference, I had a chance opportunity to meet another conference attendee, Russ Charvonia , who is the President of The Civility Center and whose personal goal is to be a catalyst in restoring civility in our society.

Well, that had me thinking, but there was more.

I then heard the keynote address from Hon. George J. Mitchell, former Majority Leader of the United States Senate, who received SCMA’s Cloke-Millan Peacemaker Award at the conference.

Naturally, he reminded me about the upcoming election and the unfortunate but pervasive hostility, disrespect, and rudeness embodied by the contest for the Presidency.

Later, in the Advance Track Program for experienced mediators like myself, a mock mediation took place as the focal point for analysis in which, among other things, one of the “actors” played the role of a snide, aggressive lawyer while another played the role of disputant full of hostility and defensiveness.

In fact, it was very much like a real mediation, because those personalities and behaviors do appear from time to time.

I have written about these issues before, and, in the hope of being a catalyst to restore civility, like my colleague Russ Charvonia, I will simply reprise these prior posts by reference, as follows.

You can look for more on my blog, but here are a few highlights for you:

Civility

Kindness

Aggressiveness

Bullying

In our conversation, Russ Charvonia reminded me, because he is a Mason, as am I, that civility and Freemasonry go hand in hand, which is why I follow Masonic Principles in my mediation practice and in life and recommend the same to each and all of my colleagues and readers.

***

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

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