Ken Strongman, Esq. – Mediator

Category: Arbritration

General and specific information on my arbitration practice.

  • 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.

  • I want to resolve the dispute, but the other party’s demands are unreasonable. What should I do?

    FAQ_Mediation Mendocino 02

    I want to resolve the dispute, but the other party’s demands are unreasonable. What should I do?

    I want to resolve the dispute, but the other party’s demands are unreasonable. What should I do?  Don’t let yourself get stuck refusing to make what you believe is a reasonable settlement offer or demand based on your opinion that the opposing party has made an unreasonable one! Instead, attempt to resolve disputes based on your reasonable evaluation. It is my job as mediator to assess, based on all the information presented, “the realm of the reasonable” in the context of potential resolution of each specific dispute and to bring the parties to that range.

    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.

  • I’ve been in mediation and there was so much conflict that nothing got done. Wouldn’t I be better off just going to court?

    court
    Going to court.

    I’ve been in mediation and there was so much conflict that nothing got done. Wouldn’t I be better off just going to court?

    This is an option, but you may not resolve your dispute. Mediation is not about coming to the table as friends to avoid conflict and confrontation, as many professionals would have you believe. It’s about resolving disputes. Inherent in the concept of “dispute” is conflict and without confrontation of that conflict head-on, there may be settlement, but there may be no true resolution.

    In some disputes, settlement itself may be enough, but in most, in addition to the economic or performance related issues, there is an undercurrent of emotion, and both sides often perceive themselves as a “victim” in the dispute. Those complaining of a wrong see themselves as the aggrieved party. Those responding, because they often believe they are involved in the dispute needlessly, feel abused by the claimant and the dispute process, particularly when facing the burdens of litigation.

    You may wish to avoid confrontation at the outset but may find, as the process continues, that you want to express yourself to other parties. Make sure you talk to me as your mediator to allow this flexibility. In a truly meaningful mediation, in addition to providing valuable information to you about the dispute, I will guide you safely through confrontation of the conflict to resolution.

    Remember that Mediation is Conflict at its best.

    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.

  • Why I joined the ADR section – article

    Here is the article that was just published in the Contra Costa Lawyer, Volume 26, Number 1- January 2013.  I am starting an exciting years as Chair of the ADR Section of the Contra Costa Bar Association.

    Meet Your Section Leaders – Alternative Dispute Resolution

    Ken Strongman

    How has section membership benefited your practice?

    I joined the ADR Section so that I could be on the cutting edge of the way we resolve disputes in our so­ciety, including the way we litigate in California. I did it so that my cor­porate clients would always benefit from the earliest thoughts and pro­cesses available and that my media­tion practice would correspondingly expand and be the best it could be.

    On my own, I would have had zero influence on the profession. As part of the ADR section, we collectively help direct the future of Alternative Dispute Resolu­tion processes in Contra Costa and the State of Califor­nia. This has allowed my practice to be in the forefront of ADR. Rarely will my general counsel clients be criti­cized for selecting me as a mediator. They are able to confidently tell their parties that they tried everything to avoid litigating and incurring additional legal fees and their company bosses can then assure their direc­tors and shareholders that they have retained the best.

    Besides being on the forefront of ADR, we are able to ad­vise Courts and members of the Bar as to the best prac­tices ADR has to offer. Currently, we are actively help­ing the Courts develop rules, policies and procedures to avoid having justice grind to a halt in our current Court budget crisis. I am also able to modify my practice to pre­pare for the coming changes in rules, policies and proce­dures.

    At every one of our programs, be it a formal presentation or informal roundtable, I learn something new that will benefit my mediation practice in concrete ways. Every one of our events is designed to benefit the ADR practi­tioner – whether it be a roundtable on mediation prac­tice marketing, or our yearly specialized class on How to Mediate with Self Represented Litigants.

    Why should someone join the ADR Section?

    By joining the section, ADR practitioners and those who participate in ADR as an advocate for their clients will benefit themselves and their clients in knowing the direction of dispute resolution in Contra Costa and the way litigation will occur in California in the continuing Court budget crisis

    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.

  • Arbitrator’s Duty to Avoid Potential Conflicts

    There needs to be an absolute appearance of being impartial.
    avoid conflicts

    Arbitrator’s Duty to Avoid Potential Conflicts

    Upon accepting an appointment, arbitrators should always avoid entering into any financial, business or other relationship that is likely to affect impartiality or might reasonably create an appearance of partiality or bias. For example, an arbitrator should not accept any engagement involving a party while an arbitration case is pending, nor do so for a reasonable period of time after the case concludes. Likewise, arbitrators should disclose previous cases for which they were retained that involved any party, counsel or witness in the current case.

    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.

  • Arbitrator’s Duty to Neutrality

    Duty to be impartial and neutral.
    Duty to be impartial and neutral.

    Arbitrator’s Duty to Neutrality

    It is the Arbitrator’s duty to be impartial and neutral throughout a proceeding. Impartiality extends to parties, counsel, agents, witnesses, co-panelists and even the type of case involved. Arbitrators must be impartial in both appearance and in fact. Arbitrators are viewed by parties in an arbitration case much as a judge would be viewed in a court of law. In some ways, arbitrators have greater power than a judge for example except for limited reasons; arbitration awards generally cannot be appealed. Therefore, it is particularly important in arbitration that the forum be fair and be perceived to be fair.

    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.

  • FAQ: What is the Comprehensive Mediation Agreement?

    FAQ_Mediation Mendocino 02
    Comprehensive Agreement

    FAQ: What is the Comprehensive Mediation  Agreement?

    In order to ensure all parties understand the status and implications involved, a comprehensive Mediation Agreement dealing with issues such as confidentiality, admissibility and privilege in relation to documentation and information exchanged must be agreed in advance. The Mediation Agreement will also deal with the costs of the mediation including the mediator’s fees and will establish how these costs are to be shared between the parties. An appropriately qualified mediator will usually provide a draft Meditation Agreement and it can be amended to suit the parties wishes before being signed by each of the parties and the mediator.

    This is standard practice for all of my mediations.  My mediation agreement includes the time and location of the mediation; any known apparent conflicts; the rules of confidentiality; due dates for briefing the dispute and payment of fees.  Generally, the fee is split between the parties but this can be modified by the parties.

    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.

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