Skip to content

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

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.


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.


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 .

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.


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.


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 .

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,, 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, ) 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 )

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,, 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, ).

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 .

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 .

Guided Dialogue Helps

I just read a piece on the website of KPCC entitled LAPD mediation program for residents and cops creates better understanding – when they show up.

The article was striking for two points made by the author:

1. “Most of the time, either the officer or resident had no interest in meeting with each other.”

2. “But when the angry resident meets with the man or woman who wears a badge, mediation appears to work.”

In the mediations I conduct, I often say that my role is not to decide who is right and who is wrong in the dispute; rather, my role is to help manage a conversation in which the participants help themselves to make an informed decision as to a resolution once they understand more about themselves, each other, the predicaments they face, and possible solutions.

It is amazing what can happen when both sides, with the help of a mediator, listen to one another and engage in a nonjudgmental dialogue, directly or indirectly, that helps them understand one another better.

The author of the KPCC piece said as much:

Of 185 survey responses, 155 participants were either satisfied or somewhat satisfied with the process, according to the LAPD report. And two-thirds of the officers and residents who participated said their understanding of the other party increased after mediation. [Emphasis added.]


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

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.”


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 .

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

%d bloggers like this: