Ken Strongman, Esq. – Mediator

Category: Mediation

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

  • Task #1: What do you want out of the mediation?

    Task #1: What do you want out of the mediation?

    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 #1:  What are your basic interests as you approach the resolution of this dispute?  List them in rank order.  Examples to consider are money, revenge, fairness, maintaining a working relationship, security.

    To expand one example even further: it is important to come to grips with what your future relationship with the other party will be.   It makes a tremendous difference in the solution if you see yourself having to socialize or to do business with the other party in the future.  Naturally, if it is a personal injury case such as an auto accident, there was little to no prior relationship and probably not much need for a future relationship.  But even then, you might want to leave open the possibility of a relationship.  It might be a slip and fall in front of a business that you have patronized and would like to continue doing business in the future despite of the slip and fall.

    The purpose of this exercise is to fully understand what you as a mediation participant really wants at the onset of the mediation.  Often by the time you arrive at this point in the process, it has been forgotten.  Review the list with your attorney and with the mediator.

    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.

  • When It’s Just the Attorney at the Mediation.

    When It’s Just the Attorney at the Mediation.

    At a recent seminar hosted by Gary Weiner, Mediation Program Administrator at the California Court of Appeal, First Appellate District, for the Court’s Mediation Panel, we had lively discussion about Provost v Regents, (2011) 201 Cal.App.4th 1289.

    I would like to focus on only one aspect raised by this case.  That is the ability of attorneys to participate in mediations on behalf of and in place of their clients.  In Provost, an attorney appeared for the Regents at the mediation and signed the term sheet for the Regents at the end of the mediation.  The ability for the attorney to bind the Regents to a settlement was raised upon appeal.

    The court found that the attorney was an employee of the Regents’ General Council office and was assigned to the case by the Regents’ General Council and vice president of Legal Affairs.  Also, the Regents’ ‘by-law 21’ makes the General Council an officer.   The attorney was also ‘fully familiar with the case and understood the seriousness and finality of settling’ within the Regents’ guidelines.  To top it off, the Court concluded that since the Regents’ did approve the settlement at a later date, they had given the attorney full authority to settle.

    It is very important to ensure that any attorney appearing at mediation for and in place of their client, have real authority to settle the dispute.   As a mediator, I make sure that there is adequate evidence that the attorney has authority to settle the dispute up to the demand of the other side.

    I learned this lesson the hard way early in my mediation practice.  An attorney appeared without her client and claimed fully authority to settle the case.  It turned out that the authority she had was to accept a dismissal with prejudice of the entire case and the ability to issue a promise not to sue for malicious prosecution.

    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 do good mediators do?

    What do good mediators do?

    What do good mediators do? At a recent seminar hosted by Gary Weiner, Mediation Program Administrator at the California Court of Appeal, First Appellate District, for the Court’s Mediation Panel, we had a brain storming session on what good mediators do.

    Here are some of my gleanings from my colleagues:

    • A mediator quickly gets all sides to build trust in the mediator so that:  They believe and understand what I need to accomplish with them at the mediation. As mediator, I’m their new best friend by the end of the mediation session so that I can persuade them to do things in their best interest and to listen to me as a mediator.
    • A mediator manages the process so power is not considered to be one sided.
    • A mediator is a good listener so that ever one is heard.
    • Conversely, a mediator is selectively deaf to comments that are counter productive.  A good mediator re-formats the incendiary comments to keep the processing moving forward.
    • A mediator makes all sides aware of the needs and motivations of the other side.
    • A mediator educates all parties to their opponent has reasonable needs and motivations.  I start this process before the mediation and continue it through to resolution of the dispute.
    • A mediator educates each side on the worst case scenario if there is no resolution to the dispute.
    • A mediator will use what ever means is reasonably necessary to resolve the conflict.
    • A mediator helps all of the parties to resolve the dispute.

    I am happy to fully concur with my colleagues in these practices.

    good Mediator
    Ken Strongman, Mediator

    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?

    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.