Ken Strongman, Esq. – Mediator

Month: May 2013

  • Task #17: How do you evaluate the betrayal, bad faith or loss of confidence?

    Ken Strongman Mediation Tasks 07
    betrayal, bad faith or loss of confidence

    Task #17: How do you evaluate the betrayal, bad faith or loss of confidence?

    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.

    Previously, you were asked to pin point the exact time and place for your sense of betrayal, bad faith or loss of confidence in the agreement and other party.  That is important because there is usually a time and place when you realize the agreement that you had developed with the other party is not work according to your hopes and dreams.

    Now you need to determine how you evaluated the betrayal, bad faith or loss of confidence.  It is often the same evaluation process you used to develop the trust and good will of the original agreement.  Knowing how you evaluated both the original good will and now the betrayal will lead to possible solutions to the dispute.  Was it because they stopped looking you in the eye?  Was it a failure to return a phone call in a timely matter?  Was it a failure to respect you and your time, expertise or property?  With this knowledge you can then determine possible solutions to the dispute.

    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.

    © 2020 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?

    FAQ_Mediation Mendocino 03
    My 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.

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

  • Teaching youth how to resolve conflicts.

    Communication skills to resolve conflicts

    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.

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

  • Arbitration, then Mediation, a way to blend them both.

    Arbitration-Mediation
    Blend mediation and arbitration

     Arbitration, then Mediation, a way to blend them both.

    Many view mediation as a one-way street.  You conduct a mediation to settle a law suite.   Nothing could be further from the truth.  There are many ways to blend mediation with the legal system or blending it with other alternative dispute resolution processes to reduce or resolve conflict. 

    One way is to blend arbitration and mediation so that the participants have the benefits of both arbitration and mediation.

    The process begins with binding arbitration before a single arbitrator.  At the conclusion of the arbitration session, the arbitrator immediately issues a binding decision and proceeds to seal it so neither the parties nor council know the result. 

    Immediately following the arbitration, mediation is conducted by a different neutral. This mediator, like the parties, also does not know the content of the sealed arbitration decision.   If the mediation ends in a settlement, the arbitration decision is destroyed and the parties never learn how it turned out. However, if the mediation does not result in a settlement, the arbitration award is unsealed and disclosed, at which time it becomes final and binding. 

    This process of sealing the decision and potentially destroying the arbitration decision, if a settlement is reached, is negotiated between the parties and the arbitrator.  It is accomplished in the arbitration service agreement.  The length of time allowed for mediation must also be explicitly outlined in the agreement to arbitrate.

    There are significant advantages to this arbitration-mediation model.  First, it brings prompt finality to the litigation process, either though a binding arbitration award, or else through a mediated settlement. 

    The procedure also diminishes the overall cost of litigation.  The actual cost of presenting a case in arbitration is significantly lower that a one to two week trial, stipulations between the parties can further streamline and simplify the issues.  Medical expert opinion can be presented through medical reports, declarations and records. 

    There are other benefits beyond cost savings.  The arbitration-mediation process encourages a more cooperative, less adversarial framework for resolving cases.  The protocol allows parties and key claims personnel, such as the adjuster in charge of the file, to see how key witnesses present themselves at the binding arbitration prior to engaging in mediated settlement discussions.  It also solves the case at a much earlier date that the potential four-year wait until trial. 

    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.