Category: Mediation

What is Mediation and how to effectively use it to resolve disputes.

  • Don’t be afraid of anger – angry people can’t lie.

    don't be afraid
    Don’t be afraid.

    Don’t be afraid of anger – angry people can’t lie.

    The first step to resolve any conflict is to defuse anger.  But do not be afraid of anger.  An angry person can’t lie because anger is a primitive emotional response.  To lie, you must control your emotions and turn on your intellect.  So when someone is angry, whatever they are telling you contains some truth.  Beware that this does not stop good actors.  A good actor merely appears to be angry as they try to control the situation

    There are several reasons for anger:

    To vent. An angry person needs to let off steam and release the anger that may have been brewing for a long time.  To resolve the conflict you need to allow this to happen, but try to control it by reframing their issues. 

    To get the listener’s attention. An angry person wants to know that you are paying attention.  Use good listening skills to demonstrate that you are paying attention.

    To be heard. An angry person wants someone to listen to their point of view.  To resolve the conflict, you need to acknowledge the feelings you hear so that the speaker knows you appreciate how angry they are.

    To be understood. An angry person wants someone to appreciate how they feel.  Therefore try to empathize with their experience so that they feel you understand the situation, and acknowledge their ‘right’ to feel the way they do.  This does not mean that you should agree with their justification.  You do want to remain neutral in the conflict and not pick sides.

    **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. 

     

    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.

  • How are you going to deal with them after the dispute?

    Philmont Scout Ranch Deal
    Deal with the future

    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.

    These tasks and the discussion with the mediator are confidential.   They are confidential under both Attorney Client privilege and under mediation confidential provisions in court rules, statutes, and standards.

    Task #4: How are you going to deal with them after the dispute?

    In the previous task, you were asked to describe what you wanted life and/or business to look like five years after the dispute has been resolved.   This task is more focused on how you are going to deal with your opponents five to ten years after the dispute is resolved.

    The easy answer to this question is that ‘I never want anything to do with them again.’  If the dispute is an automobile accident then that might work as an answer.  But if your opponents are commercial suppliers, customers, fellow businesses in a limited market, employees or employers, neighbors, and even family, the question becomes a lot more challenging.

    I have mediated boundary line and other disputes between neighbors.  It becomes a lot more difficult to resolve when both neighbors realize that they will still be living next door to each other for possibly decades.  I have also mediated disputes with family owned business.  They had to take into account the likelihood of having to sit down for Thanksgiving dinner with each other.  There were also the unintended impacts on other family relationships that were not in dispute.  Commercial enterprises need to evaluate the publicity of the dispute and the possible need for an on going business relationship now and in the future.

    Carefully list and count the costs regarding different solutions to the dispute.  Might there be a better settlement that reduces future conflict.  Also evaluate the costs of litigating the dispute to its conclusion on the future relationship to your opponents.

    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.

  • What if you truly disagree upon with your opponents?

    What Points Do You Disagree
    What Points Do You Disagree?

    Tasks for reaching a mediated settlement to a dispute

    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.

    These tasks and the discussion with the mediator are confidential.   They are confidential under both Attorney Client privilege and under mediation confidential provisions in court rules, statutes, and standards.

    Task #7: What If you truly disagree upon with your mediation opponents?

    In Task #6, you were asked to search for some potential common ground you might have with your mediation opponents to help facilitate a voluntary agreement to settle this matter.   Now you need to flip the question around and come up with the significant issues that you disagree upon.

    Strangely enough this will help the mediator to focus the mediation session upon the real and lasting issues of the dispute.   Then everyone can focus on the task at hand to develop together a voluntary agreement to resolve the dispute.  For example, breach of contract might be agreed upon, but whether it is a major or minor breach is the true disagreement.  Likewise, there might not be a disagreement on liability but it is the measure of damages that is the true dispute.   Even then, there might be considerable agreement.

    Review these disagreements with your attorney and confidentially with the mediator.

    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.

  • How do you persuade someone if you think you are right and they are wrong?

    Ken Strongman xc03

    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 .

    How do you change someone’s mind if you think you are right and they are wrong?

    We normally resort to the following: “You are, I’m afraid to say, mistaken. The position you are taking makes no logical sense. Just listen up and I’ll be more than happy to elaborate on the many, many reasons why I’m right and you are wrong. Are you feeling ready to be convinced?”

    No matter the subject, this is the approach many of us adopt when we try to convince others to change their minds. It’s also an approach that often leads to the person you are trying to persuade to harden their existing position. Research suggests there is a better way. It is a way that involves more listening, and less trying to beat your opponent into submission.

    Yale researchers, Leonid Rozenblit and Frank Keil suggested that in many instances people believe they understand how something works when in fact their understanding is superficial at best. They called this phenomenon “the illusion of explanatory depth”. They began by asking their study participants to rate how well they understood how things like flushing toilets, car speedometers and sewing machines worked, before asking them to explain what they understood and then answer questions on it. The effect they revealed was that, on average, people in the experiment rated their understanding as much worse after it had been put to the test.

    What happens, argued Rozenblit and Keil, is that we mistake our familiarity with these things for the belief that we have a detailed understanding of how they work. Usually, nobody tests us and if we have any questions about them we can just take a look. Psychologists call this idea that humans have a tendency to take mental short cuts when making decisions or assessments the “cognitive miser” theory.

    Why would we bother expending the effort to really understand things when we can get by without doing so? The interesting thing is that we manage to hide from ourselves exactly how shallow our understanding is.

    This is a phenomenon that will be familiar to anyone who has ever had to teach something. Usually, it only takes the first moments when you start to rehearse what you’ll say to explain a topic, or worse, the first student question, for you to realize that you don’t truly understand it. Teachers often say to each other “I didn’t really understand this until I had to teach it”. Inventor Mark Changizi quipped: “I find that no matter how badly I teach I still learn something”.

    How “Explain yourself” can be used to persuade others.

    A research team, led by Philip Fernbach, of the University of Colorado, reasoned that the phenomenon might hold as much for political understanding as for things like how toilets work. They hypothesized that people who have strong political opinions would be more open to other viewpoints, if asked to explain exactly how they thought the policy they were advocating would bring about the effects they claimed it would.

    Recruiting a sample of Americans via the internet, they polled participants on a set of contentious US policy issues, such as imposing sanctions on Iran, healthcare and approaches to carbon emissions. One group was asked to give their opinion and then provide reasons for why they held that view. They got the opportunity to put their side of the issue, in the same way anyone in an argument or debate has a chance to argue their case.

    Those in the second group did something different. They were asked to explain how the policy they were advocating would work. They were asked to trace, step by step, from start to finish, the causal path from the policy to the effects it was supposed to have.

    The results were clear. People who provided reasons remained as convinced of their positions as they had been before the experiment. Those who were asked to provide explanations softened their views, and reported a correspondingly larger drop in how they rated their understanding of the issues.

    Therefore listening to detailed explanations regarding how their idea will work will soften their position at the very least.

    **Why the picture of Cross Country runners?  It takes a lot of persuasion to get them to the finish line. 

     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.

  • Harnessing the Power of Guilt Appeals for Effective Persuasion.

    How To Use Guilt Appeals to Resolve Disputes in Commercial Mediation – sora-shimazaki-5673488

    Do you want to master the art of persuasion? Imagine a world where you hold the key to changing minds, where you can skillfully influence conversations with sales pitches, or navigate negotiations and mediations. The art of persuasion is a fundamental part of human interaction, utilized by all of us. In the realm of mediation, persuasion becomes a two-way street, where each party vies to shape the outcome in their favor.

    To be an effective mediator, one must engage in various forms of persuasion, not through coercion or manipulation but by employing techniques that foster cooperation and understanding. In this blog, we’ll delve into the fascinating world of “Guilt Appeals” – a powerful tool that taps into our innate sense of justice. We will explore how they work, their effectiveness, and why they hold a unique place in the art of persuasion.

    So, are you ready to enhance your persuasive skills and discover the secrets behind guilt appeals? Let’s embark on this enlightening journey together.

    Persuading others involves the art of changing minds, a skill that we encounter daily in human discourse. Salespeople, parents, mediators, and countless others employ the art of persuasion as a fundamental tool in their toolkit. In mediation, persuasion is a dynamic process where both parties attempt to sway each other’s opinions long before seeking a compromise. Based on my experience, I’ve learned that to excel as a mediator, one must harness various persuasive techniques. I steer clear of coercive and manipulative practices, instead opting for mediator interventions that facilitate the resolution of deeply rooted or fiercely contested disputes.

    Let’s dive into the world of “Guilt Appeals,” a potent method for influencing others. Every human possesses an innate sense of justice, a fundamental part of our being. This sense isn’t solely imparted by our mothers, although they skillfully employ guilt appeals to guide our actions. A quick visit to a preschool playground, regardless of culture, reveals children’s candid judgments about fairness. Consequently, the use of guilt-inducing suggestions regarding bad behavior, along with recommended changes to rectify situations and alleviate guilt, is a global phenomenon.

    But what exactly are guilt appeals? They involve highlighting inconsistencies between behaviors and standards, essentially predicting the consequences if someone fails to take a particular action. Their effectiveness is intriguing – as guilt intensifies and becomes more explicit, its power diminishes. The process involves pinpointing the problem (the guilt-inducing suggestion) and presenting the solution (the recommended change) to alleviate guilt. However, there is a downside to this method, as it carries the risk of triggering resentment, anger, and a desire to challenge the message and its messenger.

    So, why do guilt appeals work? They tap into the realm of guilt, evoking unpleasant feelings that we instinctively strive to relieve by making amends for our perceived transgressions – a universal human response.

    If you find yourself entangled in a dispute and require an experienced Mediator to guide you toward a resolution, don’t hesitate to reach out to Ken Strongman. Your path to resolution begins here!

     Ken Strongman, MediatorAbout the Author: Ken Strongman  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 president of the Mediation Society. He is also a Mediator and Arbitrator for FINRA 

    © 2024 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

  • The ingredients of any conflict – Feelings & Emotions

    Emotional Journey

    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 feelings and emotions.

    Feelings and emotions – Many people let their feelings and emotions become a major influence over how they deal with conflict. Conflicts can also occur because people ignore their own or others’ feelings and emotions. Other conflicts occur when feelings and emotions differ over a particular issue.

    I began with “many people let their feelings and emotions become a major influence…” In reality, all people have emotional responses to conflict. Some are just not being honest with themselves. Pride is a major driver of the emotions. Feelings and emotions impact the ability to resolve a conflict regardless of the value in dispute.

    For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman. Here.

    **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.

    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.

    © 2021 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

  • How to persuade others using fear appeals?

    Ed Sias Invitational(Hidden Valley Park)Martinez CA
    Persuading others to run

    Persuading others using fear appeals

    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. *

    Persuade Using Fear Appeals

    Being human, we all have fears. Fear of snakes, spiders, public speaking, etc. We have fears that no one likes us, or will accept us. These are not the fears that I use in a mediation to settle a conflict. Often we do have a fear of the future. What I do is to persuade by fear of the consequences of not settling. I describe in detail the threat and consequences of inaction at the mediation session. I also give each party reasonable assurance the threat can be averted through their conduct taken in mediation.

    There is plenty to fear in not resolving a dispute in mediation. There is the financial cost of further endless litigation. There is the loss of time spent in litigation and just sitting around in court waiting.

    There is a real fear in most people of having to testify in open court. Once in mediation, one party was shocked to learn that the opposition attorney would grill her and paint her as a liar ruining her reputation. There is also the loss of choice. And there is the fear of loss of control.

    How it works

    This is a form of direct persuasion. It works best when the threat is described in detail and there is guidance on the actions to be taken to avoid it.

    Effectiveness

    Appeals that generate the most fear can be the most effective, so long as they convey both serious problems and strong feasible solutions.

    Why they work

    This process triggers thoughtful appraisal instead of mere emotion, which can neutralize defensive avoidance mechanisms. It neutralizes defensive tendencies such as anger, overconfidence or denial that may be getting in the way of logical thought. It also triggers thinking both about the threat and the subject’s ability to avert it

    *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. 

     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.

  • Values – One of The ingredients of any conflict

    Values
    Values are important in conflicts

    The ingredients of any conflict – Values

    Values are important within 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 values.

    Values are beliefs or principles we consider to be very important. Serious conflicts arise when people hold incompatible values or when values are not clear. Conflicts also arise when one party refuses to accept the fact that the other party holds something as a value rather than a preference. To resolve the conflict, clarify each party’s values.

    Values influence perceptions and at times it is hard to distinguish the two concepts. In resolving conflicts, it is easier to equate the two in order to bring resolution. Just be aware that values influence perceptions.

    Just looking at a common definition of the word will help: the regard that something is held to deserve; the importance, worth, or usefulness of something. Likewise – a person’s principles or standards of behavior; one’s judgment of what is important in life. Useful synonyms: principles, ethics, moral code, morals, standards, code of behavior.

    **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.

    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.

  • The ingredients of any conflict – Power

    Power
    Power is an ingredient of conflict

    The ingredients of any conflict is power

    The ingredients of any conflict is power. 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 power.

    Power – How people define and use power is an important influence on the number and types of conflicts that occur. This also influences how conflict is managed. Conflicts can arise when people try to make others change their actions or to gain an unfair advantage.

    Power is a powerful human motivation. In difficult conflicts, there are only two real reasons we as humans act.

    One is for stimulation.

    The other and more important one is to establish the perception of control of the situation.

    We are all looking for control of our situation. Everyone wants to establish or reestablish the perception of control.
    **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.

    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.

  • Persuade with induced cooperation.

    Mariner Invitational Garin Park Hayward CA
    Induced Cooperation teamwork

    Persuading with Induced Cooperation

    Induced cooperation is a form of persuasion. 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. *

    Induced Cooperation

    In this form of self persuasion, parties work on a common task. These tasks are simple. I often conduct brainstorming sessions to generate all of the issues we need to resolve. It can also be a list of issues that there is an agreement. Conversely, it can be a list of where they do not see eye to eye.

    They can be even simpler, such as a shared snack time. This is a time honored tradition in resolving conflicts. It could be a good reason why diplomats participate in a lot of social engagements. Sharing meals is central to the normal socialization in almost every community of humans.

    How it works

    This self persuasion works by getting the parties to work together and therefore build relationships and generate communication between each other. These can be very simple activities. I usually bring refreshments to the mediation. The act of sharing a meal builds relationships.

    More commonly, while in joint session, I conduct some brainstorming activities. They might be a list of all that we need to accomplish before an agreement can be reached. In others, it could what areas or facts that both parties can agree upon. I would drill down to everything they could agree upon no matter how small.

    Effectiveness

    By keeping the conversation going, this may reduce demonization of the other party. Often they have been at odds since the complaint was filed which in our current day and age can be several years of no contact other than through attorneys.

    This process appears to produce greater group cohesion and attitude change. It is a team building exercise. It is a team in search of a settlement agreement. The chief purpose is to generate more and effective communication in the group. When more ideas are verbalized, participates become more attentive to and accepting of other peoples views. Everyone becomes slightly friendlier with greater satisfaction with group process. It becomes a team building exercise with better coordination of effort and orientation to the achievement of the task. Furthermore, it reduces polarity. There is less focus on differences, greater focus on similarities and commonalities of viewpoints. There is increased ability to engage in flexible thinking and to find creative solutions generating reduced egocentrism and increased ability to take the perceptions of others.

    How to use it

    I used induced cooperation in all stages of my mediation sessions. And I will use it in any way I can. They more I am able to get the real parties to talk to me and more importantly to each other the more likely there will be a solution to the conflict.

    *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. 

     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.