Category: FAQ

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”.

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.

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

 Who Should Attend the Mediation?

 All parties involved in the interactions that gave rise to the dispute should be involved in the mediation. This helps me, as mediator; crystallize with the parties exactly what happened. A party may also be more candid with me when they know they may be faced with others who know exactly what happened.

It is essential that all insurance carriers are represented at the mediation and that they have full authority to settle the dispute.

In addition, for parties to a dispute, letting go of emotion is often critical to the ability to resolve a dispute. An acknowledgement of damage or expression of remorse from an opposing party or a participant in the interactions that gave rise to the dispute (without any admission of liability, of course) can make the difference. This can’t usually be done by anyone but those personally involved in the dispute.

Bringing your witnesses (party, corporate or independent) to a mediation (even if they spend all their time in a separate room), can accomplish some important things, particularly when the facts are in dispute or emotions run high. Meeting and speaking with witnesses allows a mediator to provide you with an opinion as to their credibility and the likelihood of their being persuasive with an arbitrator, judge or jury.

Every situation is different and you should talk to me, your mediator to see what would be appropriate for your mediation.

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.

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

 Why did the mediator stop the mediation without resolving the dispute?

As valuable as it is for me, as mediator, to know how to move a dispute to resolution, it is equally important, if not more so, for me to recognize when a dispute isn’t prepared for resolution and how to move it in the right direction. With the exception of reaching resolution, this is one of the greatest benefits of mediation.

Some of the most successful mediations are those in which the parties never even get to a discussion of money or resolution in the initial mediation session, but evaluate where the case is, where it needs to be and who needs to be involved, in order to achieve the greatest productivity in mediation. At this initial session, the parties through my guidance develop a plan with specific “homework” to be completed before reconvening at a different date.

This “homework” may mean spending some time and money on investigation or making a more cooperative effort between the parties in sharing existing information. Regardless, once this is done, the dispute is usually postured for a realistic and informed evaluation. Often, once the “homework” is complete, further mediation becomes unnecessary and these matters are able to resolve through the efforts the parties alone.

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.

© 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?

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.

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.

© 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?

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.

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.

© 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?

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.

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.

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

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.

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.

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