Ken Strongman, Esq. – Mediator

Month: March 2013

  • Evaluate the trust and goodwill that supported your original agreements.

    goodwill
    Goodwill

    Task #15: How did you evaluate the trust and goodwill that supported your original agreements?

    The resolution of a dispute does not just occur on the day of the mediation.   Each participant to mediation needs to prepare their own strategy for negotiation in the settlement.  Based on my experience as a mediator, these are a collection of tasks each participant needs to complete and to discuss with their council and the mediator before the mediation.

    Particularly in business disputes whether they are real estate, construction defect, general business or even intellectual property issues, there would have been a meeting of the minds before the deal was done.   That is the essence of a contract.  To get to meeting of the minds you would have had to evaluate the other party and their proposal.  More specifically you have to decide if you can trust them to carry out their side of the bargain.  With this task you need to go back and look at the trust and good will that was developed when you made the contract.  What made you trust them in the first place?  What did they say and or do to generate your trust in them?

    This is important because you may want an ongoing relationship with them after this dispute is resolved.  On the other hand you may not want to have a business relationship with them but out of necessity be forced to have a business relationship.

    By evaluating the good will you will be able to see what was good in the original deal.   It will also help you evaluate the eventual settlement agreement that you and they will be developing within the mediation.

    Ken_Strongman_003smAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

    © 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

  • I’ve been in mediation and there was so much conflict that nothing got done. Wouldn’t I be better off just going to court?

    court
    Going to court.

    I’ve been in mediation and there was so much conflict that nothing got done. Wouldn’t I be better off just going to court?

    This is an option, but you may not resolve your dispute. Mediation is not about coming to the table as friends to avoid conflict and confrontation, as many professionals would have you believe. It’s about resolving disputes. Inherent in the concept of “dispute” is conflict and without confrontation of that conflict head-on, there may be settlement, but there may be no true resolution.

    In some disputes, settlement itself may be enough, but in most, in addition to the economic or performance related issues, there is an undercurrent of emotion, and both sides often perceive themselves as a “victim” in the dispute. Those complaining of a wrong see themselves as the aggrieved party. Those responding, because they often believe they are involved in the dispute needlessly, feel abused by the claimant and the dispute process, particularly when facing the burdens of litigation.

    You may wish to avoid confrontation at the outset but may find, as the process continues, that you want to express yourself to other parties. Make sure you talk to me as your mediator to allow this flexibility. In a truly meaningful mediation, in addition to providing valuable information to you about the dispute, I will guide you safely through confrontation of the conflict to resolution.

    Remember that Mediation is Conflict at its best.

    Ken Strongman, MediatorAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

    © 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

  • With the right tools we can handle more conflict.

    handle
    Tools to handle conflict

    Mediation is conflict at its best.   All of the tools, I, as a mediator brings to the mediation help manage the conflict to a great resolution.

    Management expert Margaret Heffernan postulated five counterintuitive guidelines learned in her years running businesses and organizations in her TEDGlobal 2012 presentation.

    Her insight has great implications for successful mediations.  I have always contended that mediation is conflict at it best and her insight bares this out.   Heffernan has developed five guidelines for productive disagreement.

    1. Appoint a devil’s advocate
    2. Find allies
    3. Listen for what is NOT being said
    4. Imagine you cannot do what you all want to do
    5. After a decision is made, declare a cooling off period

    These are counter intuitive guidelines because it is assumed in mediation as well as life that we need to avoid conflict; smooth it over if we have to and compromise if all else fails.   Our job is not to avoid, smooth over or compromise, it is to find a better way.

    Explains Heffernan: “All of these guidelines are neutral and designed to aid exploration rather than judgment. There’s never any reason not to try these — who doesn’t want to make better decisions?”

    Ken Strongman, MediatorAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

    © 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.