This and many other topics will be revealed in: The “End Game” of Mediation and How to Succeed at It [A Comprehensive Road Map to the Mediation Process] on Tuesday, March 10, 4:30 pm – 8:30 pm @ the Contra Costa Bar Association.
Speakers Ken Strongman, Esq. and Malcolm Sher, Esq. will lead a program for Advocates designed to create a highly positive mediation experience and outcome for themselves and their clients. These two successful mediators will discuss some of the best practices for negotiation and to prepare the client, advocate, mediator and opposition for the mediation journey.
The Contra Costa County Bar Association certifies that this activity has been approved for 3 hours of General MCLE credit by the State Bar of California, Provider #393.
NOW FOR THE ANSWER: Seven reasons to avoid a joint mediation session
Stated another way: the advantages of a private session with the mediator
1. It is an opportunity to explain the case to a neutral person
2. The attorney and party get to evaluate their own case
3. The ability to use the mediator as a sounding board and coach
4. To be able to talk openly
5. Discuss solutions
6. Identify components of solutions from your stand point
7. Emote and vent in private about the case and the other side (person)
About 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.
Eight ways to prepare the other side for the negotiation or mediation
Prepare for mediation and many other topics will be revealed in: The “End Game” of Mediation and How to Succeed at It [A Comprehensive Road Map to the Mediation Process] on Tuesday, March 10, 4:30 pm – 8:30 pm @ the Contra Costa Bar Association.
Speakers Ken Strongman, Esq. and Malcolm Sher, Esq. will lead a program for Advocates designed to create a highly positive mediation experience and outcome for themselves and their clients. These two successful mediators will discuss some of the best practices for negotiation and to prepare the client, advocate, mediator and opposition for the mediation journey.
The Contra Costa County Bar Association certifies that this activity has been approved for 3 hours of General MCLE credit by the State Bar of California, Provider #393.
How to prepare the other side for the negotiation or mediation
• 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.
• If plaintiff counsel, make it easy for them to give you what you want. Don’t hide the ball. If defense counsel, strategize the negotiations in advance, including contents of briefs.
• Provide all decision-makers with enough information well before the mediation session. Tell them what you want and why you want it.
• Have necessary corporate resolutions, powers of attorney and other written authority.
• Construct a day in the life of the client
• Reconstruction of accident or event
• Send copies of the mediation brief and other information with the request that it is sent to the adjustor and/or other stakeholders.
About 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.
Eight reasons why money is not always the only solution to the dispute
Money and why it isn’t the answer and many other topics will be revealed in: The “End Game” of Mediation and How to Succeed at It [A Comprehensive Road Map to the Mediation Process] on Tuesday, March 10, 4:30 pm – 8:30 pm @ the Contra Costa Bar Association.
Speakers Ken Strongman, Esq. and Malcolm Sher, Esq. will lead a program for Advocates designed to create a highly positive mediation experience and outcome for themselves and their clients. These two successful mediators will discuss some of the best practices for negotiation and to prepare the client, advocate, mediator and opposition for the mediation journey.
The Contra Costa County Bar Association certifies that this activity has been approved for 3 hours of General MCLE credit by the State Bar of California, Provider #393.
Eight reasons why money is not always the only solution to the dispute:
1. There is always the possibility of a Global settlement
2. Non-monetary concessions
3. Letter of recommendation are helpful in some cases particulary employment and landlord tenant.
4. There are always tax and accounting issues. Different classifications will change the dynamic.
5. Payment plans
6. Structured Settlements
7. Bartering. They have something you could use instead of cash.
8. Confidentiality of the agreement and dispute
About 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.
Three strategies for the money dance in a negotiation or mediation and many other topics will be revealed in: The “End Game” of Mediation and How to Succeed at It [A Comprehensive Road Map to the Mediation Process] on Tuesday, March 10, 4:30 pm – 8:30 pm @ the Contra Costa Bar Association.
Speakers Ken Strongman, Esq. and Malcolm Sher, Esq. will lead a program for Advocates designed to create a highly positive mediation experience and outcome for themselves and their clients. These two successful mediators will discuss some of the best practices for negotiation and to prepare the client, advocate, mediator and opposition for the mediation journey.
The Contra Costa County Bar Association certifies that this activity has been approved for 3 hours of General MCLE credit by the State Bar of California, Provider #393.
Three strategies for the money dance in a negotiation or mediation.
Always come to the negotiation or mediation with three reference points:
1. Reservation – bottom line or walk away price is the point at which it is determined that you are better off litigating than settling. It would be better to express the reservation point not only as a monetary amount but as a package that involves quantifiable and other elements.
2. Target Point should represent the optimistic goal for a settlement outcome. It should be a package of monetary and other elements and should be between the reservation point and opening offer.
3. Opening Offer is the number with which your side will begin the bargaining process. It should be more optimistic than your target point because of the give and take of negotiations.
About 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.
Why you shouldn’t make the opening bid in negotiation or mediation
Why you shouldn’t make the opening bid in negotiation or mediation and many other topics will be revealed in: The “End Game” of Mediation and How to Succeed at It [A Comprehensive Road Map to the Mediation Process] on Tuesday, March 10, 4:30 pm – 8:30 pm @ the Contra Costa Bar Association.
Speakers Ken Strongman, Esq. and Malcolm Sher, Esq. will lead a program for Advocates designed to create a highly positive mediation experience and outcome for themselves and their clients. These two successful mediators will discuss some of the best practices for negotiation and to prepare the client, advocate, mediator and opposition for the mediation journey.
The Contra Costa County Bar Association certifies that this activity has been approved for 3 hours of General MCLE credit by the State Bar of California, Provider #393.
NOW FOR THE ANSWER TO: Why you shouldn’t make the opening bid in negotiation or mediation.
You may undervalue your case because of missing information.
The other side may have undervalued its own case. You may underestimate what the other side is willing to pay or accept.
About 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.
persuade others using two-sided refutational messages
Persuade Others Using Two-sided Refutational Messages
Refutational messages: what are they and how to persuade others using two-sided refutational messages? Persuasion is the process of changing minds. Persuasion is an everyday part of human discourse. It is used by salesmen, parents, teachers, and many others – basically all of us. Persuasion in mediation is a two-way street. Long before you try to influence another to moderate their demands or consider the other side’s point of view, chances are good that they will have tried to convince you to their position.
It’s my experience in order to be an effective mediator, I must engage in various forms of persuasion. I do not engage in coercive or manipulative persuasion practices by which pressure brought to bear on reluctant participants to get a settlement. I do use a range of potential mediator interventions to help the parties resolve deeply held or competitively bargained differences. *
Two-side Refutational Messages
The basic concept is to present two sides and reasons one side is more persuasive.
This is reality testing. I do it later in the day or mediation session.
It is a road map for evaluating the case. It is also where I earn my mediator’s fee.
It incorporates both sides with lots of detail. What would happen if you went to court?
What would the court do in the end?
It is by its very nature evaluative. At some point during the mediation session, I am always asked what I think the valuation of the conflict. Putting it another way, who do I think will win in court. I do not do this early in the session because I want the parties to see both sides of the issue and hopefully persuade them as to the just outcome.
While doing it later in the session, it shows both sides that I have listened all day and that I know what each side thinks and what their real needs are to settle the case. Many times, both sides have worked hard to come to an agreement and I do not have to lead them through this process. In the end it is persuasion by reviewing the pros and cons of both sides of the issue
How Does This Work
It is a form of direct persuasion with cogent detailed analysis of both perspectives, and conclusion as to which perspective is stronger. My conclusions do have an impact. As a disinterested third party this is what I think of your case. Naturally, I do couch it in terms of my experience and expertise and that a jury might look at it slightly differently. Faced with a conclusion by some one else is a mind altering event.
Effectiveness
1. Messages with explicit overall conclusions are significantly more persuasive than messages without conclusions.
2. Messages with more conclusions and reasoning are significantly more persuasive than messages with generalized conclusions.
3. Two sided messages are more persuasive that one-sided messages
Why they work
Arguments that reveal their sources and are specific are significantly more credible persuasive than their less explicit counterparts.
*Stark, James H. and Frenkel, Douglas N., Changing Minds: The Work of Mediators and Empirical Studies of Persuasion (2013). Ohio State Journal on Dispute Resolution, Vol. 28, No. 2, Pg. 263, 2013; U of Penn Law School, Public Law Research Paper No. 11-07
**Why the picture of Cross Country runners? It takes a lot of persuasion to get them to the finish line.
About 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.
Needs are ingredients of any conflict. All conflicts have similar ingredients. They may vary in degree but most are present in some way. The main ingredients are needs, perceptions, power, values, and feelings and emotions. Today, I am focusing on needs.
Needs – Needs are physical requirements essential to our well-being. Conflicts arise when we ignore others’ needs, our own needs or the group’s needs. It is important to not confuse needs with desires. Desires are the things we would like to have but are not essential to our survival.
By the time it is necessary to resolve a conflict; usually the needs are lost or hidden by the other ingredients of the conflict. Therefore it is important to spend time ascertaining those needs.
For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman. Here.
About the Author: Ken Strongman, is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA.
**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.
Ambient intimacy or ambient awareness is more than social media noise.
Ambient awareness on Twitter is only one aspect of Social Media that Legal Professionals need to master. My Project Social Media presents my thoughts regarding the impact of social media marketing on the practice of law. See my page to for more information.
Therefore let’s continue the topic of what ways a Legal Professional can use Twitter.
Ambient Intimacy
Ambient intimacy or ambient awareness is more than social media noise. It is the ability to keep in touch with people that you can’t otherwise because of time and space. It is saying “good morning” as you are walking down the hallway. You stay familiar with them by becoming away of the mundane issues of life.
Who wants this level of detail? Isn’t this all just annoying noise? There is great value in this ongoing noise. It helps us get to know people who would otherwise be just acquaintances that we would otherwise loose track. It makes us feel closer to people we care for but in whose lives we’re not able to participate as closely as we’d like.
Knowing details creates intimacy. It also saves a lot of time when you finally do get to meet face to face with these people in real life. It’s not so much about meaning, it’s just about being in touch.
Mikhail Bakhtin called it “the phatic function.” It is like saying “Good Morning” as you pass someone in the hall when you have no intention of finding out anything else. The phatic function is communication simply to indicate that communication can occur. It’s not so important what gets said as that it’s nice to stay in contact with people.
These light exchanges typify the kind of communication that arises among people who are saturated with other forms of communication. Another way to look at it is in child development. Out of sight out of mind: if the drops out of the baby, the baby forgets about it. By continuing to communicate in short bursts, those around us know we still exist: “Hi. I’m here and still practicing law”.
Next time, I will discuss more ways Twitter can be used by legal professionals.
**Why the picture of flowing water? Twitter is a constant flow of information and communications.
About 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.
How to persuade others using rhetorical questions? Persuasion is the process of changing minds. Persuasion is an everyday part of human discourse. It is used by salesmen, parents, teachers, and many others – basically all of us. Persuasion in mediation is a two-way street. Long before you try to influence another to moderate their demands or consider the other side’s point of view, chances are good that they will have tried to convince you to their position.
It’s my experience in order to be an effective mediator, I must engage in various forms of persuasion. I do not engage in coercive or manipulative persuasion practices by which pressure brought to bear on reluctant participants to get a settlement. I do use a range of potential mediator interventions to help the parties resolve deeply held or competitively bargained differences. *
Rhetorical Questions
Rhetorical Questions are questions that strongly suggest the answer. I almost never use this form of persuasion in mediation. If I do it at all, it is towards the end of the day.
How they work
Rhetorical Questions are a form of direct persuasion. As a Mediator, I become an “agent of reality” in order to sow doubt and attitude change.
Effectiveness
Not effective because it increases the perception of pressure resulting in the mediator loosing the trust of the parties. Thinking therefore stops. That is why I very seldom use rhetorical questions.
Why they don’t work
It increases the impression of pressure from the questioner. Questions are seen as less knowledgeable than previously in the mediation. The parties question the mediator’s knowledge base. It makes me appear that I don’t know what is going on, which is not true. It does reduce message acceptance. Furthermore, it interferes with message elaboration and self-persuasion.
*Stark, James H. and Frenkel, Douglas N., Changing Minds: The Work of Mediators and Empirical Studies of Persuasion (2013). Ohio State Journal on Dispute Resolution, Vol. 28, No. 2, Pg. 263, 2013; U of Penn Law School, Public Law Research Paper No. 11-07
**Why the picture of Cross Country runners? It takes a lot of pursuasion to get them to the finish line.
About 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 was an eventful year for my family. But I don’t want to focus on that but to reflect on the events of the wider world and the relative small town I live in – Walnut Creek.
One hundred years ago Walnut Creek citizens voted to incorporate the city. This year was the celebration of that election. For the last 100 years the city council has met to govern the affairs of the community. It has not always been smooth. There were plenty of arguments. Many were very long meetings. There may have been a fight or two that wasn’t recorded in the official records. There was even a move to reverse the incorporation. Despite the good, bad and not so pretty, the town government still functions.
While Walnut Creek has been bumping along with democracy more or less successfully for the last one hundred years the rest of the world is just learning what democracy is and is not. There are some places where democracy has been practice for much longer than Walnut Creek, but for most of the world it is a totally a new thing.
Looking at a map of the world in 1914 you will find that the world had little experience with democracy.
The Middle East was all part of the Ottoman Empire. None of the countries that now dominate the news existed. They were not even provinces of the Ottoman Empire. They would be created by the winners of World War I.
Likewise the Russian Empire had not fallen to bold vision of communism. It was ruled by an absolute monarchy. Therefore Ukraine, Central Asia and the Caucasus were all subject to the will of the Tsar.
Not stopping with the Russian Empire, the Austria-Hungry Empire also fell at the end of World War I. With its fall all of the Balkan countries were created. We often think that Europe has been there for thousands of years. It has but not in its current form. Many new countries appeared at the end of the War to End All Wars. Their first experience with democracy occurred in the 1920’s. I haven’t even gotten to post colonial Africa and Asia. Democracy is a new concept there as well for the most part.
We shouldn’t be surprised when there are some bumps or major challenges on the road to a robust democracy through out the world. I for one want to congratulate the people of Walnut Creek for persevering and wish them the best in the next 100 years.
Have a very Happy New Year in 2015.
About 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.
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About 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.
