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.
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.
Devil’s Advocate is one of the roles of a mediator. A good mediator such as myself, does not forfeit his personal opinions simply because he serves as a neutral facilitator. These opinions and preconceptions can help inform certain beliefs. However, a strong mediator knows how to view a case from multiple angles. This is an important quality to possess as it helps provide a counter point to a party or attorney’s one-sided approach.
A Strong Mediator
A strong mediator gives consideration to the strengths and weaknesses of both sides. When in a private caucus with one side, the mediator may mention a potential weakness in this side’s argument. He may even ask the party what his or her argument would be if he or she was on the other side. He or she may get the attorney to contemplate the same scenario and ask for facts and legal theories that would support the other side.
By recognizing the strengths of the other side and the weaknesses of their own side, parties can start to contemplate the potential of what would happen if they lose. This can often inspire them to fully participate in negotiations so that they can avoid the possibility of losing the case or facing other adverse effects.
Sounding Board
Mediator is a “sounding board” for your arguments, and for offers/counter offers. I can deal with the hypotheticals and be a “coach”, to deliver bad news and explain opponents’ responses to offers. I, as a strong mediator give you an opportunity to explain the case to a neutral person help you and your attorney evaluate your case. Finally, a good mediator helps identify components of solutions from your stand point and delivers bad news to both sides.
For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman. Here.
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.
It is assumed that a retired judge makes a better mediator than someone that has not been a judge.This couldn’t be further from the truth.
Rendering judgment requires an entirely different skill set than helping the parties resolve their case through mediation. The day to day activities of a judge do not lend themselves to facilitating the resolution of conflicts.The basic skill that is useful to a judge but not a mediator is the ability to make quick and final decisions on any particular issue. Therefore when they approach mediation they want to make the decision and not let the parties control their own solution to the problem.
It is assumed that 20-years on the bench translates to 20-years experience working with civil attorneys and parties and the issues of civil litigation.In most courts today, very few judges are presiding over civil trials.Most of their days as spent presiding over criminal trials.Even the remaining time of their tenure on the bench is divided between family law, juvenile, probate, and traffic.
The law practice of most judges before being appointed to the bench is not as a civil attorney.Many were deputy district attorneys or public defenders before becoming judges.Therefore they have no experience with any civil issues before becoming judges.
Mediation is a voluntary process that centers on discussions and decision-making, rather than judgment by a judge or retired judge. It is focused on resolving disputes based on the factual circumstances, the needs of the parties and practicality, and not solely on the legal rights of the parties. Often, the mere presence of a retired judge creates an antagonistic and adversarial atmosphere that impedes resolution rather than assisting it.
In reality you want a mediator such as me that is trained in helping the parties resolve their problems.
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 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.
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 – 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.
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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.
