Resolving conflicts through negotiation

 Conflict Resolution, Mediation, Speaking & Training  Comments Off on Resolving conflicts through negotiation
Oct 252017
 

negociationResolving conflicts through negotiation.

Resolving Conflict is a part of life. Negotiation is how conflicts are resolved. Hopefully, they can be resolved peacefully and to the satisfaction of both parties to the conflict. It is also part of any leaders skill set. Therefore, some of these blog postings will deal with ways a leader can help resolve conflicts.

I hope to provide useful information on:

  • Know and articulate several ways that good leadership can minimize conflict.
  • Understand how the acronym E.A.R. can be used as a tool for resolving conflicts (Express, Address, Resolve).
  • Use several communications skills important for resolving conflicts
  • Know negotiating skills to resolve conflicts for the benefit of all parties to the conflict.

All conflict resolution involves negotiation. Therefore as a starting point, let’s look at the definition and characteristics of negotiation.

What is Negotiation

Negotiation is a voluntary, non-binding bargaining process, in which the parties to a dispute attempt resolution among themselves.  Often, agents of the disputing parties (their lawyers, real estate agents, accountants, and so forth), who are in actual communication with each other, are the negotiators.  The actual disputing persons sometimes do not meet or participate in direct discussions until most, or all, of the dispute has been resolved.

Characteristics of Negotiation

The chief characteristics of negotiation are:

  • Mutual Consent. Negotiation is voluntary.  The parties cannot be compelled to negotiate or even negotiate in good faith.  Negotiations cease when one party declines to continue.
  • Successful Result is Enforceable. A negotiated settlement, usually memorialized in a written agreement, is as valid and enforceable as any common law contract.
  • The parties and/or their agents are in personal contact with each other.  A third party neutral is involved in negotiations.
  • No statute or case law governs the process of negotiation.  Some prefer to negotiate in person.  Others use letters, e-mail, or telephone calls.  Still others negotiate through agents or intermediaries.
  • Negotiation is a process, taking place over time, as opposed to a single meeting or a brief exchange of correspondence.
  • Negotiators share facts and arguments often in a disorganized manner.  Negotiators posture and obfuscate, misstate the law, rail and threat and bluff, implore and cajole, and mix fact with fiction, exaggeration, and lies, during a series of back-and-forth communications.
  • Negotiations are usually conducted in private.  Publicity is anathema to a frank exchange of opinions, offers, and demands negotiations.

 

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.

© 2017 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

A handy tool for resolving conflicts.

 Conflict Resolution, Mediation, Speaking & Training  Comments Off on A handy tool for resolving conflicts.
Oct 252016
 

conflict tool

Tool for resolving conflicts

A very handy tool for approaching any conflict situation that needs to be resolved is E.A.R. 

Ask the people involved to:

Express – What you want and what are you doing to get it.

Address – Why it is working or not working.

Resolve – What ways there are to solve the situation.

**For the last decade I’ve been involved with leadership development of tomorrow’s leaders.  Using my expertise, I am training the youth leaders in conflict resolution.  This blog is adapted from my training materials. 

 

 

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.

Mediators Playing the Devil’s Advocate

 Conflict Resolution, Mediation, Speaking & Training  Comments Off on Mediators Playing the Devil’s Advocate
Oct 182016
 

Devil's Advocate

Devil’s Advocate

Mediators Playing the Devil ’s Advocate

Devil’s Advocate is one of the roles of a mediator. A good mediator such as myself, does not forfeit his personal opinions simply because he serves as a neutral facilitator. These opinions and preconceptions can help inform certain beliefs. However, a strong mediator knows how to view a case from multiple angles. This is an important quality to possess as it helps provide a counter point to a party or attorney’s one-sided approach.

A Strong Mediator

A strong mediator gives consideration to the strengths and weaknesses of both sides. When in a private caucus with one side, the mediator may mention a potential weakness in this side’s argument. He may even ask the party what his or her argument would be if he or she was on the other side. He or she may get the attorney to contemplate the same scenario and ask for facts and legal theories that would support the other side.
By recognizing the strengths of the other side and the weaknesses of their own side, parties can start to contemplate the potential of what would happen if they lose. This can often inspire them to fully participate in negotiations so that they can avoid the possibility of losing the case or facing other adverse effects.

Sounding Board

Mediator is a “sounding board” for your arguments, and for offers/counter offers. I can deal with the hypotheticals and be a “coach”, to deliver bad news and explain opponents’ responses to offers. I, as a strong mediator give you an opportunity to explain the case to a neutral person help you and your attorney evaluate your case. Finally, a good mediator helps identify components of solutions from your stand point and delivers bad news to both sides.

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.

FAQ: Are Retired Judges Better Mediators?

 Arbritration, FAQ, Mediation  Comments Off on FAQ: Are Retired Judges Better Mediators?
Aug 092016
 

Stinson Beach, Dip Sea Trail, CP XC Team

FAQ: Are Retired Judges Better Mediators?

It is assumed that a retired judge makes a better mediator than someone that has not been a judge.  This couldn’t be further from the truth. 

Rendering judgment requires an entirely different skill set than helping the parties resolve their case through mediation.  The day to day activities of a judge do not lend themselves to facilitating the resolution of conflicts.  The basic skill that is useful to a judge but not a mediator is the ability to make quick and final decisions on any particular issue. Therefore when they approach mediation they want to make the decision and not let the parties control their own solution to the problem.

It is assumed that 20-years on the bench translates to 20-years experience working with civil attorneys and parties and the issues of civil litigation.  In most courts today, very few judges are presiding over civil trials.  Most of their days as spent presiding over criminal trials.  Even the remaining time of their tenure on the bench is divided between family law, juvenile, probate, and traffic.

The law practice of most judges before being appointed to the bench is not as a civil attorney.  Many were deputy district attorneys or public defenders before becoming judges.  Therefore they have no experience with any civil issues before becoming judges.

Mediation is a voluntary process that centers on discussions and decision-making, rather than judgment by a judge or retired judge. It is focused on resolving disputes based on the factual circumstances, the needs of the parties and practicality, and not solely on the legal rights of the parties. Often, the mere presence of a retired judge creates an antagonistic and adversarial atmosphere that impedes resolution rather than assisting it.

 In reality you want a mediator such as me that is trained in helping the parties resolve their problems.

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.

Listening is the best way to resolve conflicts.

 Conflict Resolution, Mediation, Speaking & Training  Comments Off on Listening is the best way to resolve conflicts.
Jul 192016
 

listening

Listening to resolve conflicts

The better the information you have, the greater your chances of finding a workable solution.  Listen carefully to what others are saying, not judging until you hear everyone’s story.  Be aware of tone of voice, body language, and other clues.  Understand what each person is expressing – what he wants and what he is willing to do to get there.  Then clarify that the solution lies with all parties. 

Listen carefully to what others are saying without judgment until you have everyone’s side of the story.  Clarify what you have heard and then reframe it back to each party.  Remember the solution lays with both parties not you.

**For the last decade I’ve been involved with leadership development of tomorrow’s leaders.  Using my expertise, I am training the youth leaders in conflict resolution.  This blog is adapted from my training materials. 

 

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.

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.

What am I getting for my money when I hire a mediator?

 Arbritration, FAQ, Mediation  Comments Off on What am I getting for my money when I hire a mediator?
May 032016
 
Hire a mediator

Hire a mediator.

What am I actually getting for my money when I hire a mediator?

When you hire me as your mediator, you are buying the opportunity, through a neutral third party, to evaluate with someone who is an objective “sounding board,” your real needs (personal, economic, spiritual, etc.) and to evaluate which dispute resolution process will best help you meet those needs.

*    You are buying my opinions and impressions of “your first juror,” as to existing information/evidence and that which is non-existent.

*    You are buying an opportunity to become more informed of the risks and benefits involved in resolving or litigating a dispute.

*    You are buying an opportunity to address and resolve differences of opinion or expectation between you and your client, you and other professionals or between several clients (business partners, etc.).

*    In addition, you are buying many things that can’t be quantified, unique to your particular dispute, which come with the intervention of an experienced neutral.

I am usually hired as a mediator because of my perceived ability to resolve a dispute.

Mediators don’t settle cases, parties do! What you are really buying are choices.  My value as a mediator is my expertise in guiding all of the parties involved in a dispute to a point where there are new, real and often difficult choices created. It is up to you to evaluate those choices, in light of the insights you gain through the mediation process, and choose that one which will end the dispute in the manner that brings you the most complete resolution. In getting to that point, whether that choice is to accept a proposed settlement or continue on the path to litigation, you have gotten “your money’s worth”.

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.

Teaching youth how to resolve conflicts.

 Conflict Resolution, Mediation, Speaking & Training  Comments Off on Teaching youth how to resolve conflicts.
Apr 262016
 

Teaching youth how to resolve conflicts.

I’m privileged to be an adult staff member for a National Youth Leadership Training (NYLT) course.  It is a very satisfying experience and a lot of fun.  One key topic on the course is how to resolve conflicts as a leader.  This blog is adapted from this course.

Leading the youth through this necessary topic allows me to bring my professional expertise in settling disputes to the more practical issues of conflict resolution.   The course can be applied to any situation as a young person or adult.

The learning objectives of the conflict resolution course are:

  1. Know and articulate several ways that good leadership can minimize conflict.
  2. Understand how the acronym E.A.R.  can be used as a tool for resolving conflicts (Express, Address, Resolve).
  3. Use several communications skills important for resolving conflicts
  4. Know when, as a leader, the resolution of a conflict is beyond your expertise and how to seek help in resolving the conflict.

 

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.

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.