Ken Strongman, Esq. – Mediator

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  • Process of Commercial Mediation

    The Process – pexels-khwanchai-phanthong-4175023.jpg

    Commercial mediation is a process of resolving disputes that arise in business transactions. It involves a neutral third-party mediator, such as myself, who facilitates negotiations between parties in conflict to arrive at a mutually acceptable resolution. Mediation is a flexible process that allows parties to explore various options for resolving disputes, and it is often faster, less expensive, and less formal than litigation.

    If you are considering commercial mediation to resolve a dispute, it is essential to understand the process involved. In this blog post, I will walk you through the process of commercial mediation.

    Pre-mediation

    The first step in commercial mediation is pre-mediation. At this stage, the mediator and the parties involved will hold preliminary discussions to determine whether mediation is the right option for resolving the dispute. They will also discuss the logistics of the mediation process, such as scheduling, location, and fees.

    Mediation agreement

    Once the parties agree to mediate, the mediator will prepare a mediation agreement. This document outlines the ground rules for the mediation process, including the role of the mediator, the confidentiality of the process, and the commitment of the parties to participate fully in the process.

    Opening Statements

    At the beginning of the mediation session, the mediator will make an opening statement, explaining the mediation process and the role of the parties involved. The parties will also have the opportunity to make opening statements, outlining their position on the dispute.

    Negotiation

    The negotiation phase is the most critical part of the mediation process. The parties will engage in discussions, facilitated by the mediator, to explore possible solutions to the dispute. The mediator will help the parties identify areas of agreement and areas of disagreement and guide them toward a resolution that is acceptable to all parties.

    Settlement agreement

    Once the parties reach a mutually acceptable resolution, the parties will prepare a settlement agreement. This document outlines the terms of the agreement and is binding on all parties involved. The settlement agreement is a legally binding document and can be enforced in court if necessary.

    Follow-up

    After the mediation process, the mediator may follow up with the parties to ensure that the settlement agreement is being implemented as agreed. This is an essential step to ensure that the parties’ rights are protected and the dispute is fully resolved.

    Commercial mediation is an effective way to resolve disputes in a timely, cost-effective, and collaborative manner. By understanding the mediation process, you can approach mediation with confidence and work toward a mutually acceptable resolution to your dispute. If you are looking for a quick and efficient way to resolve your business dispute, commercial mediation may be the solution for you.

    For an experienced Mediator to help negotiate a resolution to your commercial dispute contact Ken Strongman. Here.

    About the Author: As a professional Mediator and Arbitrator since 2004 Ken Strongman has years of experience and has successfully resolved disputes in the fields of Business/Commercial, Securities, Estates/Probate/Trusts, Real Estate, Intellectual Property, Construction Defects, Construction Contracts, Employment, and Environment. He is also a Mediator and Arbitrator for FINRA. 

    © 2023 Ken Strongman. All Rights Reserved. Please do not copy or re-post without permission.

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

    When It’s Just the Attorney at the Mediation.

    At a seminar hosted by Gary Weiner, former 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.

    © 2022 Ken Strongman. All Rights Reserved. Please do not copy or re-post without permission.

  • What do good mediators do?

    What do good mediators do?

    • 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.

    For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman. Here.

    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.

    © 2022 Ken Strongman. All Rights Reserved. Please do not copy or re-post without permission.

  • 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?

    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.

    © 2022 Ken Strongman. All Rights Reserved. Please do not copy or re-post without permission.

  • What’s wrong with the other side’s case?

    What’s wrong with the other side’s 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.

    What’s wrong with the other side’s case?

    Now is your attorney’s opportunity to turn the introspection of your own case on its ear.  You need to list everything that is wrong with your opponent’s case.   You need to review this 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.

    © 2022 Ken Strongman. All Rights Reserved. Please do not copy or re-post without permission.

  • What is the weakness in your case?

    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.

    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.

    © 2022 Ken Strongman. All Rights Reserved. Please do not copy or re-post without permission.

  • At what point will you know that the potential agreement is better than going to court?

    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.

     Questions:

    • 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.

    © 2022 Ken Strongman. All Rights Reserved. Please do not copy or re-post without permission.

  • How will you know you have developed an agreement at the end of the mediation?

    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.

    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.

    © 2022 Ken Strongman. All Rights Reserved. Please do not copy or re-post without permission.

  • Do you agree on anything?

    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.

     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.

    © 2022 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

  • What do you truly disagree upon with your mediation opponents?

    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.

    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.

    © 2022 Ken Strongman. All Rights Reserved. Please do not copy or re-post without permission.