How will you know you have developed an agreement at the end 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.
How will you know you have developed an agreement at the end of the mediation?
What objective criteria could you use with the other parties to the mediation to develop a fair and constructive voluntary agreement to settle the matter?
Mediation is not “splitting the baby” or just splitting the difference between the parties. But it is composed of hard negotiations between the parties. It is important to begin constructing for yourself just what a voluntary agreement between the parties would look like. Remember each party will be doing the same, so each will have to believe that the settlement is fair to them as well.
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.
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.
What do you and the other parties agree upon?
These can be significant or minor issues in the dispute. Anything will do. The purpose is to build a voluntary resolution to the dispute.
Can you agree that there is a dispute? If you can’t agree to that there is a dispute, then what will we have to do to have a successful mediation?
Other more obvious agreements might be: Is there a written contract? Is this the contract? Does each party have enough information to evaluate the case? Can you agree on dates, times, people involved significantly in the dispute?.
Be prepared to not only share your results with you attorney but with the mediator as well. Because of your efforts now, at the mediation you will be able to cut though to a voluntary agreement almost effortlessly.
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.
What do you truly disagree upon with your mediation opponents?
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.
What do you truly disagree upon with your mediation opponents?
In a previous task, 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.
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.
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.
The purpose of mediation is to reach a voluntary agreement with the other parties. It is not something imposed upon the parties by the mediator. It’s your choice to decide to reach a voluntary agreement rather than to continue to fight.
Can you work towards a voluntary agreement if it would satisfy your interests and the interests of the other parties?
You will need to discuss this issue with your attorney and the mediator. If you are not willing to cooperate with the other parties to find a voluntary solution to the problem, then your attorney and the mediator need to decide if a mediation session at this time is appropriate. It would not benefit you, if you were not willing to arrive at a solution the dispute.
As the mediator, I would want to discuss with you and your attorney what the impediments to reaching a solution to the problem. Once these impediments are identified, we can develop potential solutions.
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.
How are you going to deal with them after the 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.
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.
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.
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.
Where do you want to be in five years after this mediation?
Develop a basic description or visualize what life and/or business would be like in five to ten years? What does life and/or business look like after the resolution of this dispute? How will you spend your time, money and talent?
The purpose of this exercise is to get you to think what life might be like after the resolution of this dispute. Right now you are in the middle of the dispute and its immediate aftermath. You have spent time – a lot of time, money and energy on various aspects of the dispute. If it is a commercial dispute, you will have gone through the disruption of preparing and doing the discovery process. If it is personal injury, you will have endured lost work while being deposed in depositions. You have spent considerable time wondering if you will win in court. Have you spent time thinking about life after the dispute is resolved. What does that look like?
Discuss this with your attorney and confidentially with your 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.
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.
What do they want?
You know that you have interests that need to be satisfied when you attend the mediation, the other side also has interests. What are those interests?
They have communicated their interests to you through a variety of means. What do you think those interests are? They can be money, time, minimize their risks, fairness, maintain a working relationship, etc. List and rank them.
It is important to realize that your legal opponents do want something out of the dispute and that they are willing to spend time, money and legal talent in order to get it. This does not mean that they will succeed. It just means that there are things you can use as bargaining chips.
It is entirely possible that you might have some of the same interests. This is also an opportunity to create a solution outside of the box. Realizing this possibility will help reach a settlement easier at least on certain issues.
Review the list you have created with your attorney and be prepared to discuss it in confidence with your 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.
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.
How to persuade others by orchestrating apologies?
How to you persuade others by orchestrating apologies? 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. *
Orchestrating Apologies
Since most of my mediations are with parties that have on going relationships such as construction, business, and technology, I spend considerable time orchestrating apologies. In a business relationship reconciliation is necessary. To contradict the theme of the Godfather , “it is always personal and not strictly business”.
The time to orchestrate apologies can take several hours of effort. It is negotiation in itself. We need to find out what the offence is exactly. What form will the apology take? Who will apologize to whom? This includes who will be in the room when the apology is given. How much time will be allowed to deliver the apology and any response? And more importantly will the apology be accepted?
Once the time and effort is expended to orchestrate and deliver an apology, solutions to the problem often quickly come into focus. Often the amount in controversy drops quickly and precipitously.
Effectiveness
Apologies are more effective for a single transgression than for a series of transgression over time. But, in the event of a damaged relationship, there is tremendous potential for reconciliation and resolution of the conflict.
The effect of mere expressions of sympathy was dependent on the context. I avoid allowing this to happen. The punitive transgressor needs to know that they did wrong, what they did wrong and why it was wrong. Otherwise the other party could be offended and then dig in to their position if not deepen their position.
Full elaborate apologies are more effective that less elaborate ones. I spend effort setting the stage for the apology. It encourages reconciliation if both parties know what is going to happen.
The more serious the transgression or the greater the harm, the more elaborate the apology must be. This should be self evident. Sometimes, it is necessary to put the apology in writing and include it in the settlement agreement. Since the settlement agreement is usually confidential, there is no loss of face even if it is in writing.
Partial apologies can be unproductive or even counterproductive in the effects on the recipient. I do not encourage or allow partial apologies to take place. I’ve had the misfortune to have very good settlement blow up before they were signed because of a off-handed apology.
In case of less serious injuries less clear culpability or both, any apology even if complete may be better than none. Putting it simply, apologize for what you know you did wrong. Do not under any circumstances apologize for something you are not convinced was wrong. It is not a matter of assuming liability but the other party will not be convinced of your sincerity.
Full settlement apologies push plaintiff’s lawyers in a generally opposite direction. An apology executed correctly has a tendency to low the demands from the other side. If a plaintiff is on a contingence fee agreement, that will lower their pay day.
Why they work
Apologies helping disputants separate past (regrettable) acts from essential (positive) selfhood may be a highly effective form of self-persuasion. Apologies help resolve cognitive dissonance- dissonance effects are strongest (and self persuasion greatest) when actions are inconsistent with self concept of being a good person.
Risks
A successful apology requires skill and expertise. This can’t be emphasized enough. I spend considerable time testing the feasibility of an apology. I will even review it with the opposition before it is delivered.
How they work
If party accepts responsibility for causing injury to the other party, then the offended party makes more positive character related attribution towards the offender. Also, because of the regret, it changes assumptions about future behavior and expectations for the future relationship.
Apologies decrease anger towards the offender and increase sympathy for offender’s perspective especially if offender accepted full responsibility.
Presence or absence of apology affects on offenders parties ‘bottom line’ in legal negotiations well as the parties aspirations and opinion about what constitutes a fair settlement.
Recipients of apology reported less need to punish the other and greater willingness to forgive that those who did not receive apology.
Insincere apologies may actually cause people to react negatively.
*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
For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman.Here.
**Why the picture of Cross Country runners? It takes a lot of persuasion to get them to the finish line.
About the Author: Ken Strongman, is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA.
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
For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman.Here.
**Why the picture of Cross Country runners? It takes a lot of persuasion to get them to the finish line.
About the Author: Ken Strongman, is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA.
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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.
