Podcast – Final question: Mediation is conflict at its best.

 Civil Engineering, Conflict Resolution, Mediation  Comments Off on Podcast – Final question: Mediation is conflict at its best.
Jun 272016
 

Civil Engineeering

Podcast – Final question: Mediation is conflict at its best.

What do you mean when you say: Mediation is conflict at its best? This was the final question Chris Knutson, PE asked in our podcast from Stuttgart, Germany. The podcast was a wide ranging discussion of how civil engineers could use mediation to resolve disputes in construction.

Here are the links to the Podcast:

Web Down Load

iTunes link

 

The final question of the podcast that Chris Knutson, PE asked:

What do you mean by the byline on my website: “Mediation is conflict at its best”?

To answer that I will have to give you a little history. Throughout history societies have developed and used mediation to resolve problems. Somehow in the last hundred years the USA has only focused on litigation to solve problems. That is why we are considered a very litigious society.
In the sixties, the hippies rebelling against the “Establishment”, rediscovered mediation as a means to solve problems. Their intent was to eliminate all conflict. Don’t forget the whole idea was to have peace.
Around the same time the business community (and I lump engineers into this group), were facing an average time of five years of litigation just to get to trial. This was expensive and counterproductive. They also started to experiment with mediation as a way to quickly resolve disputes. They also recognized that you could never get rid of all conflict you could only manage conflict in better ways.
For myself, mediation does have conflict in it that must reach a conclusion. But it is controlled so that it does not get out of hand. A better solution comes from the recognition that conflict is part of our lives and that through mediation you can control the outcome of the conflict. Therefore: Mediation is conflict at its best.
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.
© 2016 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

Podcast – Does Mediation solve Civil Engineering and Construction disputes?

 Civil Engineering, Conflict Resolution, Mediation  Comments Off on Podcast – Does Mediation solve Civil Engineering and Construction disputes?
May 092016
 

Civil Engineeering

Podcast – Does Mediation solve Civil Engineering and Construction disputes?

Chris Knutson, P.E. of the Engineering Career Coach questioned me: Does Mediation solve civil engineering and construction disputes? While he was in Stuttgart, Germany and I in California we tackled that question and more. With over 750,000 downloads under their belt, I was honored to answer their questions.

Here’s the links to the podcast.

Web Down Load

iTunes link

Here are more detailed answers to some of their questions:

From your experience, how successful is mediation for resolving civil engineering and construction disputes? What happens if a mediation doesn’t produce an agreed upon resolution?

I’m a little bias in my response. I find mediation to be very successful in resolving disputes.
If the mediation does not create a settlement that is satisfactory to all of the key decision makers, it has reached an impasse. At that point, we might try to create a partial agreement. If not a partial agreement, we might schedule another mediation session. I will do follow up to see if the parties can come to an agreement or schedule another session. I am finding that it is common to have several sessions particular in complex cases. Without an agreement, it is as if the mediation never took place. The parties are free to seek other solutions to the dispute.

What does a mediation look like…who’s involved…what might one expect as it unfolds? (In other words, who hears the mediation, who is typically involved, how long do they typically last)

First of all, the mediator is not a judge. All of the stakeholders/decisions makers need to hear all sides off the dispute and solve it on their own terms The mediator is there to facilitate the process.
The mediation really starts with the first contact to the mediator. There may be multiple conversations jointly or separately with the mediator before the mediation session. This period of time also includes a mediation brief outlining each party’s description of the dispute, plus their goals and needs.
On the day of the mediation, I usually begin with a group session where I outline the process that we will engage in during the day. We also start with introductions of the parties and a statement of their opinion of why we are in a dispute. We also start to develop a complete list of issues that need to be resolved.
At some point, we will break out in separate rooms so that I can have private conversations with each party. This will continue until we develop a settlement agreement.Less complicated issues can take a day or less. The bigger the project and the more stakeholders involved will lengthen the time to reach an agreement. It might be several days.

What are some of the qualifications a good mediator?

• Able to quickly build trust and confidence.
• Excellent inter-personal skills: Patience and a sense of humor.
• Creativity in assisting parties and counsel in shaping a solution.
• Willing to do everything they can to encourage and assist in settlement.
• Being prepared for your mediation.

How does a mediation start? Does it have to be included in a contract to be a method of conflict resolution, or can both parties agree to follow it versus litigation or arbitration?

Mediation can be done at any point in the dispute.
• It can be pre-litigation. In other words, no lawsuit has been filed. If there is a dispute resolution board put into place, it will happen throughout the project as needed.
• Mediation can run parallel to litigation and arbitration. And can even be done post judgment.
• It does not have to be part of the contract. If it is part of the contract, the contract should spell out how mediation is started.
• If the contact specifies a specific provider that is not necessarily final. If the parties agree, you can use another provider such as myself.
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.
© 2016 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

Podcast – How do engineers prepare for mediation?

 Civil Engineering, Conflict Resolution, Mediation  Comments Off on Podcast – How do engineers prepare for mediation?
Apr 112016
 

Civil Engineeering

Podcast – How do engineers prepare for mediation?

How does an civil engineer prepare for mediation? With over 750,000 downloads of the Engineering Career Coach’s podcast, I was honored to be interviewed regarding the use of mediation in civil engineering and construction disputes by Chris Knutson, P.E.

The link to the podcast:

Web Down Load

 iTunes link

 

It was a wide ranging interview and all that we talked about couldn’t be included in the podcast. Therefore the following is a more detailed question and answer:

What sort of civil engineering or construction disputes typically go to mediation? What type of disputes would you say aren’t right for mediation and are better handled through litigation?

Let me answer that in a roundabout way.
In Fresno, California there is a court sanctioned program to mediate between the victims of crimes and the criminals. It is called a Victim Offender Reconciliation program. It is used to determine sentencing.
A friend of mine is working in maximum security women’s prison teaching mediation techniques to the women sentenced to life so that they can mediate disputes within the prison.
Last year I mediated a case in which the underlining dispute was murder.
None of these have anything to do with engineering, but I don’t see any engineering dispute more difficult to resolve. I routinely deal with these types of disputes: employment, contract, professional liability, construction defect, and environmental issues.

How many parties can participate in meditation? Are each represented by their own counsel?

The simple answer is that all of the stakeholders in the dispute should be present. More specifically, each stakeholder’s decision makers should be present.
The key purpose of mediation is for you and your opponent to tell their story as to why we are here at mediation. Everyone needs to see the other side; to listen to them; and to be heard by them. Don’t forget that body language also communicates aggressiveness or sincerity in finding a solution. All sides need to see and make a connection with each other. Communication is key to finding a solution.
Others that may attend the mediation are the experts. They can be present to give analysis so that each side can judge the credibility of the others experts. You might also have financial accountants and tax advisers depending on the nature of the dispute. In more complex cases you might have computer simulations. Basically anyone who can assist your attorney in convincing the other side to your point of view should be part of your team.
Usually, each side has legal representation. Do not forget insurance representatives. Make sure to involve them.
Other candidates for attendance:
• Insurance adjustors
• Cumis counsel
• CEO and/or HR Director
• Silent partners in business
• Investors
• Overseas stakeholders

How does a firm, or an individual, prepare for a mediation?

There are four major steps in preparation for mediation.
Preparing yourself, your Expectations and Realities.
• You need to recognize that mediation may be your “best and only day in court.”
• What do you intend to communicate at the mediation session?
• Determine the goals, needs and interests.
• Determine the Risks v. Benefits – emotional and economic.
• Determine “Best alternative to a negotiated agreement.” and “Worst alternative to a negotiated agreement”.
• Develop different “settlement scenarios”.
• Finally – recognizing the other side’s interests.
Preparing your attorney
• Defining the issues with them
• Make sure you both understanding the facts and the law.
• Prepare a decision tree analysis, if helpful.
• Find out how your attorney wants to show case you. This is important if the other side has never met you.
Preparing the Opposition Attorney, Adjuster, CEO or Other Decision-Makers/Stakeholders
• Don’t burn bridges! Be polite and collaborative. Seek a “win-win” solution.
• Recognize that they are key players, have egos and have to justify any settlement with their bosses.
• Make it easy for them to give you what you want. Don’t hide anything.
• Provide all decision-makers with enough information well before the mediation session. Tell them what you want and why you want it.
• Send copies of the mediation brief and other information to them with the request that it is sent to the adjuster and/or other stakeholders.
Preparing the Mediator
• Educate me!
• Be willing to engage in pre-session teleconferences. Remember mediation is a process, not an event.
• Make sure that the right people attend.
• What discovery issues still remain unresolved?
• Who do you want the opposition to bring to the mediation? The mediator may not be aware of the silent stakeholder or cumus council.
• Consider site visits and other pre-session preparation. And that the mediator may talk to the adjustor, other stakeholders or witnesses.
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.
© 2016 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

Mar 282016
 

Civil Engineeering

Podcast – Mediation in Civil Engineering and Construction: What is the role of engineers?

Recently, I was interviewed by Chris Knutson, P.E., regarding the role of engineers in mediation of civil engineering and construction projects. It was a lively interview considering that he is in Stuttgart, Germany while I’m in California.

Here’s the link to the podcast:
Web Down Load

iTunes link

The interview covered a wide rage of topics. The following is a more detailed question and answer:

What is the current legal landscape confronting engineering firms in today’s industry? Is there more or less litigation?

Most, if not all professional service contacts now contain clauses requiring mediation. All construction contracts that I’ve come across also contain clauses requiring mediation. For larger projects, dispute resolution boards are created at the signing of the contract agreeing on a process of mediation. A dispute resolution board is composed of at least three mediators selected by the parties of the contract to become familiar with the project and to provide mediation services for any dispute arising in the course of the project.
Aside from the contract, if there is a dispute that is litigated, the courts will encourage mediation. Though mediation is voluntary, the courts encourage mediation by saying, “Why don’t you try to mediate this case and come back in six months.”
Mediation doesn’t stop there. I do appellant mediations as part of my mediation practice. The appeals court will send the case back to mediation even after the parties have gone through a trial and have received a judgement.

What is mediation in the context of engineering design and construction? How is it different from litigation or arbitration?

1. In litigation you are going to the government i.e. the courts. A judge and jury that have no engineering exposure or experience will decide the case. This will occur after the project is complete. Your lawyers will control everything. You as the engineer will have little control over the outcome. You will do the litigation on their time schedule. It can easily take years to reach a resolution.
2. Arbitration I compare to private judging. You as the engineer do have a say in the naming of the arbitrators. The big advantage over litigation is the timing. It is much faster than litigation since the arbitrators are hired because they are able to hear the case on your schedule. The disadvantage is that as in litigation you have little control over the outcome. And there is no right to appeal the result.
3. In mediation you help to craft the solution and you can mediate at any time there is a dispute. In litigation and arbitration the project must be complete or the contract must be in breach before you can litigate or arbitrate.

What are benefits to the parties who participate in a mediation?

The best benefits to the parties with mediation is that they control the process and the outcome. It is significantly faster than litigation and considerably more economical than litigation.
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.
© 2016 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

Podcast – How to use Mediation in Civil Engineering with the Engineering Career Coach

 Civil Engineering, Conflict Resolution, Mediation, Speaking & Training  Comments Off on Podcast – How to use Mediation in Civil Engineering with the Engineering Career Coach
Mar 072016
 

Civil Engineeering

Podcast – How to use Mediation in Civil Engineering with the Engineering Career Coach

I am excited to present my podcast interview with the Engineering Career Coach. With over 750,000 podcast downloads, they sought me out to explain how mediation is useful in the civil engineering and construction fields.

Here are the links to the podcast:

Click on the following –

Engineering Career Coach (Web Download)

ITunes

Here are some key points discussed in this episode of The Civil Engineering Podcast:

Differences between Mediation, Litigation and Arbitration

  • Mediation – You come together to craft the solution to the problem with the help of a mediator (may take 1-3 months)
  • Litigation – You go to the court and have a judge or jury solve your case (based on the court’s time schedule usually takes 5-6 years to come to resolution)
  • Arbitration – A private judging with arbitrators making the final decision and there’s no appeal (you have control over the time schedule)

Five major steps for engineers in the preparation of mediation:

1. Prepare yourself, your expectations, your realities, and your intent. Know what you want to communicate. Know what your goals needs and interests are in a solution. Do a risk benefit analysis of where you’re at in the process. Understand where the best and worst alternatives to negotiate a settlement would be. Develop some settlement scenarios: what can you live with, think outside the box. Recognize that the other side has interests, goals and needs as well.
2. Prepare your attorney. Define your issues with them. Prepare a decision tree. Find out how the attorney wants to represent and showcase you.
3. Prepare the opposition – their attorney, their adjusters, their decision makers.
4. Provide the decision makers all the information of what is really going on, and send copies of the mediation brief to other parties.
5. Prepare the mediator – educate the mediator.

Qualities of a good mediator:

1. Able to build trust and confide in quickly
2. Excellent interpersonal skills
3. Patience and sense of humor
4. Creativity in solving problems
5. Able to think outside of the box
6. Willing to do everything that he/she can to assist a settlement
Finally, almost all disputes are initially communication issues, but mediation can help get the communication going again and help to keep your project back on track.

Ken StrongmanAbout 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.

© 2016 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.