Ken Strongman, Esq. – Mediator

Category: Mediation

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

  • FAQ: What is the format of a mediation?

    Angel Island SP - format of mediation
    The format of the mediation is flexible

    What is the format of a mediation?

    What is the format of a mediation? The process is entirely flexible and will depend on the mediator and the parties’ preferences. In general terms, it is preferable that position papers are exchanged in advance. Depending on what stage in the dispute the mediation takes place, it may be appropriate for the parties to agree to exchange relevant documents in advance. If possible, the parties and their legal representatives should meet the mediator themselves prior to the scheduled date of the mediation in order to assist the mediator identify the disputed key issues in advance.

    On the day of the mediation usually there is a joint session at the beginning when the mediator brings the parties together in order to emphasize the ground rules and if agreed, to have opening presentations by each party. Often this can provide an opportunity for either party to articulate their own perspective of a dispute in their own terms and equally importantly, to hear the other party articulate their perspective. This presentation can be made by the party themselves and/or by their legal representative.

    Thereafter, a mediator will usually meet privately with the parties in order to explore issues and possible areas of agreement and engage in a form of shuttle diplomacy. The mediator may propose further joint sessions or meetings between principals either with or without legal representatives. Ultimately, the objective is that the form of a resolution will come from the parties themselves to be formalized in a settlement agreement.

    If it is not possible to resolve the issue at mediation, the mediator will typically offer their services to the parties for a period thereafter to facilitate any further discussions. This can be particularly useful if the parties have reached agreement on all but a few outstanding issues.

    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.

  • A handy tool for resolving conflicts.

    conflict tool
    Tool for resolving conflicts

    A very handy tool for approaching any conflict situation that needs to be resolved is E.A.R. 

    Ask the people involved to:

    Express – What you want and what are you doing to get it.

    Address – Why it is working or not working.

    Resolve – What ways there are to solve the situation.

    **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.

  • FAQ: Can you settle a case after a jury has decided a case?

    Silverton, post jury settlements
    Post Jury settlements

    Can you settle a case after a jury has decided a case? As part of my full spectrum of dispute resolution services, I offer Appellate Mediation. My considerable experience in this area started in 2007.  I currently serve on the mediation panels for the First and Third Districts of the California Court of Appeal.  In addition to these panels, I now provide appellate mediation privately as well.

    What is Appellate Mediation and When Does it Occur?

    Appellate mediation focuses on cases that are on appeal or that are ready to go to appeal. Mediating a case that has gone all the way to appeal is not easy. The fact that a case has gone that far indicates that it was not one that was very amenable to settlement or mediation in the first place. Furthermore, an imbalance in power comes into play when the prevailing party in the trial court has the trial court’s decision on its side. By the time the case reaches appeal, there may be hard feelings coming from the trial, and the prospects of reaching a mediated resolution may seem daunting, but they are not impossible. Despite these difficulties I enjoy a success rate is high.
    Sometimes the parties have tried mediation at the lower court level.  In one of my cases, the parties had gone to mediation twice, attended four mandatory settlement conferences with the judge, and completed a trial by jury. Both parties appealed the decision under different grounds. The case resolved in appellate mediation.
    It is best that the mediation occur shortly after the appeal is lodged in order to save time, money, and effort.

    Benefits of Appellate Mediation after court or jury decision

    By using me as your Appellant Mediator you can speed case resolution and reduce litigation costs. Furthermore, you avoid the prospect of presenting your appeal to a sitting appellate judge as part of a settlement conference. I am able to provide the best possible assistance in resolving complex disputes without further litigation. I have the critical skills for handling the most intractable and contentious conflicts, regardless of subject matter.

    Why Is Appellate Mediation Effective?

    Joey Naylor: “Dad, why is the American government the best government?”
    Nick Naylor: “Because of our endless appeals process.”
    ~Thank You For Smoking, 2005. [Emphasis added]
    “It ain’t over ’til it’s over.”
    ~Yogi Berra, 1973
    These quotes sum up the need for Appellate Mediation. Even though a party may have a judgment from a court that does not mean that litigation is over. If a party appeals, then the litigation continues. It is costly in time, money, and opportunity costs to all parties.
    Appellate Courts generally can make several types of rulings. But none these rulings occur until after all parties spend considerable time and money preparing for the appeal. The court can affirm the judgment in which case the losing party can appeal to a higher court continuing the appeal process. The court can send the matter back down to a lower court with instructions. Then you are back litigating in the lower court. The court can order a new trial. In this case you get to start from the beginning and litigate the issues all over again.
    There are also lost opportunity costs. For example in a business dispute, you may eventually win, but by then the industry has evolved making the dispute meaningless. This is especially true in emerging industries such as high tech.

    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.

  • If you can’t get people to do anything, how to you resolve conflicts.

    In my leadership training on conflict resolution, I have the participates conduct a closed fist exercise.  The participants pair off.  One forms a fist and the other has three minutes to convince them to open their fists.

    In the debriefing time we discuss how they managed to convince the other to open their fists.   The usual results:

    ·     Bribery—”I’ll give you five dollars if you open your fist.”

    ·     Concern—”It doesn’t matter to me if you open your fist, but unless you do you won’t be able to pick anything up.”

    ·     Persuasion—”I like your hands better open than closed.”

    ·     Interest—”I’m curious to see what’s inside your fist.”

    ·     Straightforwardness—”Hey, open your fist!”

    The point of this exercise is to remind all of us that we can’t make people do anything they don’t want to do. If you ask anyone to do something and they refuse, you can’t force them to do it.

    Naturally, if they are an employee, you can fire them, but you can’t force them to do it.  The bottom line is you can’t coerce someone to do something.  Ultimately, you can only empower yourself. Then, within boundaries, you can encourage others to act in certain ways.

    **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.

  • FAQ: How to propose mediation?

    FAQ_Mediation Mendocino 01 propose
    When to propose mediation?

    A Judge may recommend that the parties consider mediation or, more commonly, one party may simply propose, through their legal representatives to the other party and their legal representative, that the dispute be mediated. A proposal to mediate should not be seen as a weakness but merely as a willingness to explore the possibility of a resolution outside the procedural confines of litigation.

    Many contracts contain mediation clauses.  The purpose of the mediation clause is to require a good faith attempt at resolving any contractual disputes before litigation is initiated.  If there is no mediation clause, the parties can still attempt to resolve their contractual dispute before commencing litigation.

    If no contract exists or it is as dispute arising out of a tort such as a personal injury, there is no reason not to suggest mediation.

    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.

  • Listening is the best way to resolve conflicts.

    listening
    Listening to resolve conflicts

    The better the information you have, the greater your chances of finding a workable solution.  Listen carefully to what others are saying, not judging until you hear everyone’s story.  Be aware of tone of voice, body language, and other clues.  Understand what each person is expressing – what he wants and what he is willing to do to get there.  Then clarify that the solution lies with all parties. 

    Listen carefully to what others are saying without judgment until you have everyone’s side of the story.  Clarify what you have heard and then reframe it back to each party.  Remember the solution lays with both parties not you.

    **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.

  • FAQ: How to propose mediation?

    Philmont Scout Ranch propose
    How to propose mediation.

    How to Propose Mediation – Options

    A Judge may recommend that the parties consider mediation or, more commonly, one party may simply propose, through their legal representatives to the other party and their legal representative, that the dispute be mediated. A proposal to mediate should not be seen as a weakness but merely as a willingness to explore the possibility of a resolution outside the procedural confines of litigation.

    Many contracts contain mediation clauses.  The purpose of the mediation clause is to require a good faith attempt at resolving any contractual disputes before litigation is initiated.  If there is no mediation clause, the parties can still attempt to resolve their contractual dispute before commencing litigation.

    If no contract exists or it is as dispute arising out of a tort such as a personal injury, there is no reason not to suggest mediation.

    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.

  • FAQ: Why you might not mediate?

    Golden Gate Bridge, Marin Headlands. not mediate
    Why you might not mediate?

    To Mediate or Not?

    The key issue is whether a party is ready to seriously attempt a negotiated settlement. If a party is insisting on pre-conditions to a mediation or sees the mediation as an opportunity to “send a message” rather than an opportunity to resolve, then there may be little prospect that a successful resolution can be reached. However, once the parties are engaged in the process, even an apparently unwilling or reluctant participant may see the benefit of reaching a resolution.

    There are very few types of disputes that cannot be mediated. An often cited example is judicial review where the issue is whether a public body or authority exceeded its powers. However, that does not mean that all judicial reviews are incapable of being resolved through mediation.

    If one party or the Court proposes mediation, the other party is entitled to refuse to mediate or at least to state that they are not ready to mediate yet. Once mediation is proposed, there is no obligation to agree. However, a party who refuses to mediate should not take this decision lightly as this may have cost implications.

    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.

  • Negotiation Tips for resolving conflicts.

    Negotiation
    Negotiation

    Negotiation is an Important Skill

    Negotiation is an important skill in mediation or any conflict resolution. It is needed for the parties to come to an agreement and thereby resolve a conflict.  It doesn’t matter if the conflict developed at home or at work, or in any leadership situation.  

    Separate People from the Problem

    When negotiating, the first step is to separate people from the problem.  When negotiating, remember you’re dealing with people who have their own unique needs, emotions and perceptions.  Some conflicts are based on differences in thinking and perceptions. These conflicts may exist mainly in peoples’ minds. It helps for each party to put themselves into the other’s shoes so they can understand each others point of view.

    Differences in Perceptions

    Identify and openly discuss differences in perceptions, being careful not to place blame. In addition, recognize and understand the other side’s emotions as well as your own.

    Positions

    People often confuse interests with positions. An interest may be reducing litter in roadside ditches. There are many possible ways of addressing this interest. One might be the position of mandatory recycling. Another position might be a deposit on bottles and cans. Still another could be organizing a clean-up day.

    Focus on interests, not positions. Focusing on interests, rather than positions, makes it possible to come up with better agreements. Even when people stand on opposite positions, they usually have a few shared interests.

    It takes time and effort to identify interests. Groups may not even be clear about their own interests. It helps to write down each group’s interests as they are discovered. It helps to ask why others take the positions or make the decisions they do. Partners will have multiple interests. Interests involving important human needs (such as security, economic well-being, a sense of belonging, recognition and control over one’s life) are difficult to negotiate.

    Develop optional solutions.  When you are developing optional solutions that meet the interests of all sides, try to meet as many of each side’s interests as possible. Start by inviting all sides to brainstorm ideas before reaching a decision.

    **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.

  • FAQ: When is mediation appropriate?

    FAQ_Mediation Golden Gate

    FAQ: When is mediation appropriate?

    Mediation can take place at any stage from before legal proceedings are issued up until trial and even after trial. Obviously, the earlier mediation takes place, the better chance of saving costs, avoiding publicity and possibly preserving future relations between the parties. However, at a later stage in proceedings mediation may have a better chance of success as the issues in dispute are more clearly defined, the parties are clearer on their strengths and weaknesses and the parties are more focused on the possible benefits and risks in terms of outcomes and costs.

    I have successfully mediated disputes before legal proceeding were initiated.  Often times these are business disputes or intellectual property/high technology disputes.  The parties were quite aware that if they took their disputes to court, it would be years before there was a resolution.  By that time, new technology innovations would make their dispute seem old and tired though legally valid.

    I have also successfully mediated disputes after trial.  In these cases, one party does have a judgment from a court, but both parties want to completely end the litigation and stop any appeals that might negate the judgment.  

    Naturally, mediation is appropriate and anytime.  Often a party has to file the lawsuit to preserve their legal rights and to put on notice to the other parties that there really is a dispute. 

    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.