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Mediation Preliminary Tasks for a Mediation

How to stay on the cutting edge of mediation

cuttting edge
Cutting edge of mediation

How to stay on the cutting edge of mediation

The cutting edge of mediation. Recently, I wrote an article for our local Bar Association Journal on why someone would want to join the ADR section of the Bar.  As the new Chair of the ADR section, was also needed to describe how membership has benefited my practice.  It was an easy assignment.

Some would want you to join the ADR Section so that you can give back to the legal community. I didn’t join for that reason.  I became involved so that I could be on the cutting edge of the way we resolve disputes in our society.  That includes the way we litigate in California.  I did it so that my corporate clients would always benefit by the earliest thoughts and processes available. Also, that my mediation practice would correspondingly expand and be the best it could be.

On my own, I would have had zero influence on the profession.   As part of the ADR section, we collectively help direct the future of Alternative Dispute Resolution processes in Contra Costa and the State of California.  This has allowed my practice to be in the forefront of ADR.  Rarely will my general counsel clients be criticized for selecting me as a mediator.  They are able to confidently tell their parties that they tried everything to avoid litigating and incurring additional legal fees and their company bosses can then assure their directors and shareholders that they have retained the best.

Besides being on the forefront of ADR, we are able to advise Courts and members of the Bar as to the best practices ADR has to offer.  Currently, we are actively helping the Courts develop rules, policies and procedures to avoid having justice grind to a halt in our current Court budget crisis. As leader of the ADR section, I see the new processes way before presentation to the general public and legal community.  We are making suggestions that would influence the result.  I am also able to modify my practice to prepare for the coming changes in rules, policies and procedures.

The ADR Section

Within the ADR section by virtue of being around other mediators, we mentor each other on a continuous basis.  At every one of our programs I learn something new that will benefit my mediation practice in concrete ways.  It doesn’t have to be the formal presentations to be useful.  It is often the informal conversations with other members that are the most helpful to my practice.

Every one of our events benefit the ADR practitioner.  Last year we held a round table on mediation practice marketing.  I came away with several ideas to help market my practice through social media.  At the same presentation, I learned what not to do so that I could spend little time and money marketing and more time devoted to mediating complex disputes.

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.

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Mediation Preliminary Tasks for a Mediation

Task #13: In a dispute, how did the relationship change?

Task #13: In a dispute, how did the relationship change?

How did the relationship change? 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.

At some point in the past, you thought you had a good relationship.  What happened? What were the important changes to your understands as the situation developed and changed?  Why did the honeymoon end?   Obviously, your vision of what was supposed to happened did not materialize the way you thought it would.   You need to clearly outline what exactly happened to be able to find a way forward.   This is an important exercise for two reasons.  First, you do not want to repeat the actions that got you into the current dispute.  Second, without knowing how you got here today, you will not be able to find a successful way out of the 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.

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Mediation Preliminary Tasks for a Mediation

Task #12: What important understanding did you think you had when you originally got involved together?

Task #12: What important understanding did you think you had when you originally got involved together?

What important understanding did you think you had when you originally got involved together? 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.

What important understanding did you think you had when you originally got involved together? This is the understanding from at least from your own point of view.  These can include working conditions, responsibilities, which one was to make the final decisions, time, money, rights, duties and working conditions.

You developed or already had a relationship with the other party.  At some point it was a good relationship.  Why did you think it was a good relationship?

This is obviously important if the subject matter of the dispute is commercial.  In other words it is based on a contract, lease, employment, insurance, agreement to buy, etc. It is still important even if the dispute is not based upon contract.  For example it could be based on a family relationship.   It even goes beyond that to personal injury and intellectual property disputes.  For example, when you enter a grocery store, it is usually your understanding that you will not slip on a banana peal.  Likewise, when you create something, you expect to receive credit for the creation.

Therefore, it is always important to understand your expectations at the beginning.  Without that understanding, it will be difficult to create a solution that is satisfying.

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.

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Preliminary Tasks for a Mediation

Task #10: What is the weakness in your case?

Task #10: What are the weaknesses in your case?

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 #10: What are the weaknesses in your case?

In this exercise, your attorney will need to take the lead in preparing your answer.  It is important that you understand its impact on your position.

You need to articulate all of the weaknesses in your case.  These can be issues of law.  I have seen issues that involve the statute of limitations.  Other times, I have seen where the original complaint did not name the correct defendants.   These may be extreme examples, but no case is perfect.

There can be issues of evidence.   It can be simple lack of evidence to support your claims.  It can be the credibility of the evidence.  Is it admissible or will its admissibility be challenged.   Seldom is there enough credible evidence to support each element of the claim.  Likewise defenses have their weaknesses as well.

There can be issues of witnesses.  Will they persuade a jury or will their testimony be discounted by the jury?  Are they available?  Will they ‘show well’ to the jury?  Can they be easily impeached?

Is a jury in this jurisdiction favorable to your position or that of your opponents?  And the list goes on.

This can all be summed up by asking what your opponent will say about your case?

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.

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Preliminary Tasks for a Mediation

Task #9: At what point will you know that the potential agreement is better than going to court?

Task #9: At what point will you know that the potential agreement is better than going to court?

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 #9:

  • How will you know when you have arrived at a voluntary agreement that satisfies your interests?  
  • What objective criteria will you use to measure how well the agreements stratify your interests? 
  • At what point will you know that the potential voluntary agreement is better that using the court system to fight it out?

As you participate in the mediation, it will be important for you to know when a voluntary agreement is near.  You need to realize the point in the mediation when you have satisfied your interests and that it now time to put the agreement into writing.  Work with your attorney on the answers to these questions and review them confidentially 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.

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Preliminary Tasks for a Mediation

Task #8: How will you know you have developed an agreement at the end of the mediation?

Task #8: 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.

Task #8: How will you know you have developed an agreement at the end of the mediation?

Using your results from Tasks 6 and 7, 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.

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.

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Preliminary Tasks for a Mediation

Task #7: What do you truly disagree upon with your mediation opponents?

Task #7: 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.

Task #7: What do you truly disagree upon with your mediation opponents?

In Task #6, 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.

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.

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Preliminary Tasks for a Mediation

Task #6: Do you agree on anything?

Task #6: Do you agree on anything?

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 #6: 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.

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.

Categories
Preliminary Tasks for a Mediation

Task #5: Do you really want to settle this dispute through mediation?

Task #5: Do you really want to settle this dispute through 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.

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.

Task #5: 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.

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.

Categories
Preliminary Tasks for a Mediation

Task #4: How are you going to deal with them after the dispute?

Task #4: 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.

Task #4: 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.

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.