Podcast – Final question: Mediation is conflict at its best.
What do you mean when you say: Mediation is conflict at its best? This was the final question Chris Knutson, PE asked in our podcast from Stuttgart, Germany. The podcast was a wide ranging discussion of how civil engineers could use mediation to resolve disputes in construction.
Podcast – Does Mediation solve Civil Engineering and Construction disputes?
Chris Knutson, P.E. of the Engineering Career Coach questioned me: Does Mediation solve civil engineering and construction disputes? While he was in Stuttgart, Germany and I in California we tackled that question and more. With over 750,000 downloads under their belt, I was honored to answer their questions.
Here are more detailed answers to some of their questions:
From your experience, how successful is mediation for resolving civil engineering and construction disputes? What happens if a mediation doesn’t produce an agreed upon resolution?
I’m a little bias in my response. I find mediation to be very successful in resolving disputes.
If the mediation does not create a settlement that is satisfactory to all of the key decision makers, it has reached an impasse. At that point, we might try to create a partial agreement. If not a partial agreement, we might schedule another mediation session. I will do follow up to see if the parties can come to an agreement or schedule another session. I am finding that it is common to have several sessions particular in complex cases. Without an agreement, it is as if the mediation never took place. The parties are free to seek other solutions to the dispute.
What does a mediation look like…who’s involved…what might one expect as it unfolds? (In other words, who hears the mediation, who is typically involved, how long do they typically last)
First of all, the mediator is not a judge. All of the stakeholders/decisions makers need to hear all sides off the dispute and solve it on their own terms The mediator is there to facilitate the process.
The mediation really starts with the first contact to the mediator. There may be multiple conversations jointly or separately with the mediator before the mediation session. This period of time also includes a mediation brief outlining each party’s description of the dispute, plus their goals and needs.
On the day of the mediation, I usually begin with a group session where I outline the process that we will engage in during the day. We also start with introductions of the parties and a statement of their opinion of why we are in a dispute. We also start to develop a complete list of issues that need to be resolved.
At some point, we will break out in separate rooms so that I can have private conversations with each party. This will continue until we develop a settlement agreement.Less complicated issues can take a day or less. The bigger the project and the more stakeholders involved will lengthen the time to reach an agreement. It might be several days.
What are some of the qualifications a good mediator?
• Able to quickly build trust and confidence.
• Excellent inter-personal skills: Patience and a sense of humor.
• Creativity in assisting parties and counsel in shaping a solution.
• Willing to do everything they can to encourage and assist in settlement.
• Being prepared for your mediation.
How does a mediation start? Does it have to be included in a contract to be a method of conflict resolution, or can both parties agree to follow it versus litigation or arbitration?
What am I actually getting for my money when I hire a mediator?
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.
I’m privileged to be an adult staff member for a National Youth Leadership Training (NYLT) course.It is a very satisfying experience and a lot of fun.One key topic on the course is how to resolve conflicts as a leader.This blog is adapted from this course.
Leading the youth through this necessary topic allows me to bring my professional expertise in settling disputes to the more practical issues of conflict resolution.The course can be applied to any situation as a young person or adult.
The learning objectives of the conflict resolution course are:
Know and articulate several ways that good leadership can minimize conflict.
Understand how the acronym E.A.R.can be used as a tool for resolving conflicts (Express, Address, Resolve).
Use several communications skills important for resolving conflicts
Know when, as a leader, the resolution of a conflict is beyond your expertise and how to seek help in resolving the conflict.
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 does an civil engineer prepare for mediation? With over 750,000 downloads of the Engineering Career Coach’s podcast, I was honored to be interviewed regarding the use of mediation in civil engineering and construction disputes by Chris Knutson, P.E.
It was a wide ranging interview and all that we talked about couldn’t be included in the podcast. Therefore the following is a more detailed question and answer:
What sort of civil engineering or construction disputes typically go to mediation? What type of disputes would you say aren’t right for mediation and are better handled through litigation?
Let me answer that in a roundabout way.
In Fresno, California there is a court sanctioned program to mediate between the victims of crimes and the criminals. It is called a Victim Offender Reconciliation program. It is used to determine sentencing.
A friend of mine is working in maximum security women’s prison teaching mediation techniques to the women sentenced to life so that they can mediate disputes within the prison.
Last year I mediated a case in which the underlining dispute was murder.
None of these have anything to do with engineering, but I don’t see any engineering dispute more difficult to resolve. I routinely deal with these types of disputes: employment, contract, professional liability, construction defect, and environmental issues.
How many parties can participate in meditation? Are each represented by their own counsel?
The simple answer is that all of the stakeholders in the dispute should be present. More specifically, each stakeholder’s decision makers should be present.
The key purpose of mediation is for you and your opponent to tell their story as to why we are here at mediation. Everyone needs to see the other side; to listen to them; and to be heard by them. Don’t forget that body language also communicates aggressiveness or sincerity in finding a solution. All sides need to see and make a connection with each other. Communication is key to finding a solution.
Others that may attend the mediation are the experts. They can be present to give analysis so that each side can judge the credibility of the others experts. You might also have financial accountants and tax advisers depending on the nature of the dispute. In more complex cases you might have computer simulations. Basically anyone who can assist your attorney in convincing the other side to your point of view should be part of your team.
Usually, each side has legal representation. Do not forget insurance representatives. Make sure to involve them.
Other candidates for attendance:
• Insurance adjustors
• Cumis counsel
• CEO and/or HR Director
• Silent partners in business
• Investors
• Overseas stakeholders
How does a firm, or an individual, prepare for a mediation?
Most Mediators describe themselves as being a neutral. It doesn’t help that the courts and clients expect us to be neutral and describes us as such. But mediators in Europe have difficulty with the description.
In the German Language the term for neutral most closely translates back into English as ‘null’. So translating it back to English, to be a null means a Mediator as a neutral is without value, effect, consequence, or significance. Further more a Mediator amounts to nothing and is nonexistent. In math when a variable has no value, it is considered to be null. Having a null value is different than having a value of zero, since zero is an actual value.
No wonder Europeans have had difficulties with the term neutral. I am much more than a zero let alone a null. The German term used to describe what a Mediator does is a better description of what I do without speaking German. Their term encompasses the following ideas:
I’m parcel to everyone equally.
I’m acting for everyone and in everyone’s best interest.
I advocate for a just solution to the dispute.
I’m attentive to all the interests of the parties.
This concept is better idea of what I am as a mediator. I am not a potted plant just sitting there all day hoping that a solution pops up. I work hard with the parties to find a just solution in a timely manner.
Thanks to my Mediation Society Colleagues, Bruce Edwards, Patrice Prince and Dana Curtis for sharing this idea. They attended the International Summer School on Business Mediation in Admont, Austria this last summer.
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.
Podcast – Mediation in Civil Engineering and Construction: What is the role of engineers?
Recently, I was interviewed by Chris Knutson, P.E., regarding the role of engineers in mediation of civil engineering and construction projects. It was a lively interview considering that he is in Stuttgart, Germany while I’m in California.
The interview covered a wide rage of topics. The following is a more detailed question and answer:
What is the current legal landscape confronting engineering firms in today’s industry? Is there more or less litigation?
Most, if not all professional service contacts now contain clauses requiring mediation. All construction contracts that I’ve come across also contain clauses requiring mediation. For larger projects, dispute resolution boards are created at the signing of the contract agreeing on a process of mediation. A dispute resolution board is composed of at least three mediators selected by the parties of the contract to become familiar with the project and to provide mediation services for any dispute arising in the course of the project.
Aside from the contract, if there is a dispute that is litigated, the courts will encourage mediation. Though mediation is voluntary, the courts encourage mediation by saying, “Why don’t you try to mediate this case and come back in six months.”
Mediation doesn’t stop there. I do appellant mediations as part of my mediation practice. The appeals court will send the case back to mediation even after the parties have gone through a trial and have received a judgement.
What is mediation in the context of engineering design and construction? How is it different from litigation or arbitration?
1. In litigation you are going to the government i.e. the courts. A judge and jury that have no engineering exposure or experience will decide the case. This will occur after the project is complete. Your lawyers will control everything. You as the engineer will have little control over the outcome. You will do the litigation on their time schedule. It can easily take years to reach a resolution.
2. Arbitration I compare to private judging. You as the engineer do have a say in the naming of the arbitrators. The big advantage over litigation is the timing. It is much faster than litigation since the arbitrators are hired because they are able to hear the case on your schedule. The disadvantage is that as in litigation you have little control over the outcome. And there is no right to appeal the result.
3. In mediation you help to craft the solution and you can mediate at any time there is a dispute. In litigation and arbitration the project must be complete or the contract must be in breach before you can litigate or arbitrate.
What are benefits to the parties who participate in a mediation?
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.
Podcast – How to use Mediation in Civil Engineering with the Engineering Career Coach
I am excited to present my podcast interview with the Engineering Career Coach. With over 750,000 podcast downloads, they sought me out to explain how mediation is useful in the civil engineering and construction fields.
Here are some key points discussed in this episode of The Civil Engineering Podcast:
Differences between Mediation, Litigation and Arbitration
Mediation – You come together to craft the solution to the problem with the help of a mediator (may take 1-3 months)
Litigation – You go to the court and have a judge or jury solve your case (based on the court’s time schedule usually takes 5-6 years to come to resolution)
Arbitration – A private judging with arbitrators making the final decision and there’s no appeal (you have control over the time schedule)
Five major steps for engineers in the preparation of mediation:
1. Prepare yourself, your expectations, your realities, and your intent. Know what you want to communicate. Know what your goals needs and interests are in a solution. Do a risk benefit analysis of where you’re at in the process. Understand where the best and worst alternatives to negotiate a settlement would be. Develop some settlement scenarios: what can you live with, think outside the box. Recognize that the other side has interests, goals and needs as well.
2. Prepare your attorney. Define your issues with them. Prepare a decision tree. Find out how the attorney wants to represent and showcase you.
3. Prepare the opposition – their attorney, their adjusters, their decision makers.
4. Provide the decision makers all the information of what is really going on, and send copies of the mediation brief to other parties.
5. Prepare the mediator – educate the mediator.
Qualities of a good mediator:
1. Able to build trust and confide in quickly
2. Excellent interpersonal skills
3. Patience and sense of humor
4. Creativity in solving problems
5. Able to think outside of the box
6. Willing to do everything that he/she can to assist a settlement
Finally, almost all disputes are initially communication issues, but mediation can help get the communication going again and help to keep your project back on track.
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.
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.
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.
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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.
