FAQ: Are Retired Judges Better Mediators?

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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.

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

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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.

If I, as mediator, give my opinion in a dispute, doesn’t that mean I am biased?

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Mar 152016
 
FAQ_Mediation Mendocino 03 opinion

Is an opinion bias?

 

If I, as mediator, give my opinion in a dispute, doesn’t that mean I am biased?

Absolutely not!  I as mediator form opinions on many issues for many reasons.

One of the primary things I do as mediator is to help you to evaluate the pros and cons of your position in a dispute and provide you with the information you need in order to make an educated decision about resolution. My opinion is critical to this process and will likely be based on the totality of the information from both sides, not merely that of one party. Although because of confidentiality, I may not be able to disclose the information to you, having an opinion from an unbiased source, based on such information may be very helpful to you in making choices.

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.

FAQ: When Does Mediation Really Start?

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Aug 182014
 

FAQ_Mediation Golden Gate - start

When does mediation start?

When does mediation start?

People tend to believe that mediation begins when all concerned parties meet in the mediation room and take their places at the mediation table.  Mediation begins when disputing parties agree to participate in a private mediation or when a Judge suggests that they attempt mediation.

Pre-mediation

This pre-mediation phase is frequently overlooked and underestimated for the potential power it has over the outcome of a mediation session.

Preparation is the Key

Would any one perform in a play without holding a rehearsal?  The answer obviously is “No.”  Yet, people often go into mediation with very little or no preparation for what could be one of the most important days of their lives.  This is even more significant when you consider that decisions made during mediation can have critical, life-changing effects for not only the disputants, but for their companies as well.  Therefore parties should not overlook this phase and begin detailed preparations for 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.

© 2014 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

Aug 122014
 

Angel Island SP qualifications

qualifications of a good mediator

I have often been asked what the qualifications of a good mediator are. My answer is self serving but true. I have worked hard to make sure that I am the best qualified to mediate a case. Remember it is not bragging if true. So as to not bore you with all of the qualifications of a good mediator and how I fulfill those qualifications, I will space them out over time.

Good Mediators are attorneys. I have been a full time practicing California attorney since 2001. I am authorized to appear before the California Supreme Court, Northern District of California and the Ninth Circuit Court of Appeals. Therefore I am able to approach a problem looking at the legal issues besides working the parties and their attorneys to resolve those issues.

Good Mediators realize that mediation is much more complex than litigation. In litigation you can just follow the law and ignore personalities and their problems. Many times, there is only one dispute initially presented in mediation, but once mediation there are many legal and non-legal issues that need to be resolved before a global solution can be reached.

Good Mediators have acquired excellent mediation skills. I have hundreds of hours of direct mediation training. I have taught 40-hour and 25-hour mediation classes. Members of the classes have included bench officers (Judges). I have mentored other mediators. I have made many California MCLE presentations on mediation. MCLE is continuing education for attorneys. I have conducted over a thousand mediations with a very high success rate. These have included appellant mediations as well. These are cases where one party has already ‘won’ and they were sent out to mediation by the Court of Appeal.

 

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.

© 2014 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

FAQ: What is the format of a mediation?

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Jul 212014
 

Angel Island SP - format of mediation

The format of the mediation is flexible

What is the format of a mediation?

What is the format of a mediation? The process is entirely flexible and will depend on the mediator and the parties’ preferences. In general terms, it is preferable that position papers are exchanged in advance. Depending on what stage in the dispute the mediation takes place, it may be appropriate for the parties to agree to exchange relevant documents in advance. If possible, the parties and their legal representatives should meet the mediator themselves prior to the scheduled date of the mediation in order to assist the mediator identify the disputed key issues in advance.

On the day of the mediation usually there is a joint session at the beginning when the mediator brings the parties together in order to emphasize the ground rules and if agreed, to have opening presentations by each party. Often this can provide an opportunity for either party to articulate their own perspective of a dispute in their own terms and equally importantly, to hear the other party articulate their perspective. This presentation can be made by the party themselves and/or by their legal representative.

Thereafter, a mediator will usually meet privately with the parties in order to explore issues and possible areas of agreement and engage in a form of shuttle diplomacy. The mediator may propose further joint sessions or meetings between principals either with or without legal representatives. Ultimately, the objective is that the form of a resolution will come from the parties themselves to be formalized in a settlement agreement.

If it is not possible to resolve the issue at mediation, the mediator will typically offer their services to the parties for a period thereafter to facilitate any further discussions. This can be particularly useful if the parties have reached agreement on all but a few outstanding issues.

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.

© 2014 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

FAQ: Can you settle a case after a jury has decided a case?

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Jun 232014
 

Silverton, post jury settlements

Post Jury settlements

Can you settle a case after a jury has decided a case? As part of my full spectrum of dispute resolution services, I offer Appellate Mediation. My considerable experience in this area started in 2007.  I currently serve on the mediation panels for the First and Third Districts of the California Court of Appeal.  In addition to these panels, I now provide appellate mediation privately as well.

What is Appellate Mediation and When Does it Occur?

Appellate mediation focuses on cases that are on appeal or that are ready to go to appeal. Mediating a case that has gone all the way to appeal is not easy. The fact that a case has gone that far indicates that it was not one that was very amenable to settlement or mediation in the first place. Furthermore, an imbalance in power comes into play when the prevailing party in the trial court has the trial court’s decision on its side. By the time the case reaches appeal, there may be hard feelings coming from the trial, and the prospects of reaching a mediated resolution may seem daunting, but they are not impossible. Despite these difficulties I enjoy a success rate is high.
Sometimes the parties have tried mediation at the lower court level.  In one of my cases, the parties had gone to mediation twice, attended four mandatory settlement conferences with the judge, and completed a trial by jury. Both parties appealed the decision under different grounds. The case resolved in appellate mediation.
It is best that the mediation occur shortly after the appeal is lodged in order to save time, money, and effort.

Benefits of Appellate Mediation after court or jury decision

By using me as your Appellant Mediator you can speed case resolution and reduce litigation costs. Furthermore, you avoid the prospect of presenting your appeal to a sitting appellate judge as part of a settlement conference. I am able to provide the best possible assistance in resolving complex disputes without further litigation. I have the critical skills for handling the most intractable and contentious conflicts, regardless of subject matter.

Why Is Appellate Mediation Effective?

Joey Naylor: “Dad, why is the American government the best government?”
Nick Naylor: “Because of our endless appeals process.”
~Thank You For Smoking, 2005. [Emphasis added]
“It ain’t over ’til it’s over.”
~Yogi Berra, 1973
These quotes sum up the need for Appellate Mediation. Even though a party may have a judgment from a court that does not mean that litigation is over. If a party appeals, then the litigation continues. It is costly in time, money, and opportunity costs to all parties.
Appellate Courts generally can make several types of rulings. But none these rulings occur until after all parties spend considerable time and money preparing for the appeal. The court can affirm the judgment in which case the losing party can appeal to a higher court continuing the appeal process. The court can send the matter back down to a lower court with instructions. Then you are back litigating in the lower court. The court can order a new trial. In this case you get to start from the beginning and litigate the issues all over again.
There are also lost opportunity costs. For example in a business dispute, you may eventually win, but by then the industry has evolved making the dispute meaningless. This is especially true in emerging industries such as high tech.

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.

© 2014 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

FAQ: How to propose mediation?

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May 122014
 

FAQ_Mediation Mendocino 01 propose

When to propose mediation?

A Judge may recommend that the parties consider mediation or, more commonly, one party may simply propose, through their legal representatives to the other party and their legal representative, that the dispute be mediated. A proposal to mediate should not be seen as a weakness but merely as a willingness to explore the possibility of a resolution outside the procedural confines of litigation.

Many contracts contain mediation clauses.  The purpose of the mediation clause is to require a good faith attempt at resolving any contractual disputes before litigation is initiated.  If there is no mediation clause, the parties can still attempt to resolve their contractual dispute before commencing litigation.

If no contract exists or it is as dispute arising out of a tort such as a personal injury, there is no reason not to suggest 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.

© 2014 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

FAQ: How to propose mediation?

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Apr 282014
 

Philmont Scout Ranch propose

How to propose mediation.

How to Propose Mediation – Options

A Judge may recommend that the parties consider mediation or, more commonly, one party may simply propose, through their legal representatives to the other party and their legal representative, that the dispute be mediated. A proposal to mediate should not be seen as a weakness but merely as a willingness to explore the possibility of a resolution outside the procedural confines of litigation.

Many contracts contain mediation clauses.  The purpose of the mediation clause is to require a good faith attempt at resolving any contractual disputes before litigation is initiated.  If there is no mediation clause, the parties can still attempt to resolve their contractual dispute before commencing litigation.

If no contract exists or it is as dispute arising out of a tort such as a personal injury, there is no reason not to suggest 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.

© 2014 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

FAQ: Why you might not mediate?

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Apr 212014
 

Golden Gate Bridge, Marin Headlands. not mediate

Why you might not mediate?

To Mediate or Not?

The key issue is whether a party is ready to seriously attempt a negotiated settlement. If a party is insisting on pre-conditions to a mediation or sees the mediation as an opportunity to “send a message” rather than an opportunity to resolve, then there may be little prospect that a successful resolution can be reached. However, once the parties are engaged in the process, even an apparently unwilling or reluctant participant may see the benefit of reaching a resolution.

There are very few types of disputes that cannot be mediated. An often cited example is judicial review where the issue is whether a public body or authority exceeded its powers. However, that does not mean that all judicial reviews are incapable of being resolved through mediation.

If one party or the Court proposes mediation, the other party is entitled to refuse to mediate or at least to state that they are not ready to mediate yet. Once mediation is proposed, there is no obligation to agree. However, a party who refuses to mediate should not take this decision lightly as this may have cost implications.

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.

© 2014 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.