Ken Strongman, Esq. – Mediator

Tag: arbritration

  • The Differences Between Commercial Mediation and Arbitration

    The Differences Between Commercial Mediation and Arbitration

    Differences Between Mediation and Arbitration
    The Differences Between Mediation and Arbitration – yan-krukov-7640796

    Alternative dispute resolution (ADR) methods such as commercial mediation and arbitration have become increasingly popular in recent years. While these two approaches share similarities, they also have significant differences, each with its own set of advantages and disadvantages. In this blog post, we will explore the differences between commercial mediation and arbitration.

    Mediation

    Commercial mediation is a voluntary and confidential process that involves a neutral third party, known as a mediator, who helps parties negotiate and reach a mutually acceptable solution to their dispute. Mediation is an informal process that does not involve strict rules of evidence or procedure. It can be used in various commercial disputes, including contractual, employment, and shareholder disputes. One significant benefit of mediation is its flexibility, as parties can agree on the mediator’s qualifications, location, and time frame for sessions. Additionally, mediation is generally less expensive and quicker than arbitration or litigation.

    Arbitration

    Arbitration is a more formal process that involves a neutral third party, known as an arbitrator, who renders a binding decision on both parties. Arbitration can be used in various commercial disputes, including contractual, construction, and intellectual property disputes. Unlike mediation, the arbitrator’s decision is final and enforceable, and the process is governed by strict rules of evidence and procedure. However, arbitration also offers greater flexibility than litigation, as parties can agree on the arbitrator’s qualifications, location, and time frame for proceedings. Additionally, the rules of evidence and procedure are generally less formal than those in litigation, making arbitration a more accessible and efficient process.

    In conclusion, both commercial mediation and arbitration are valuable ADR methods in resolving commercial disputes. Mediation is a more informal and flexible process that relies on parties’ agreement to reach a mutually acceptable solution. In contrast, arbitration is a more formal and binding process that involves a neutral third party’s decision. Ultimately, the choice between mediation and arbitration depends on the nature of the dispute and the parties’ goals and preferences. By understanding the differences between these two approaches, parties can make informed decisions when selecting an ADR method to resolve their commercial disputes.

    For an experienced Mediator to help negotiate a resolution to your commercial 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 and president of The Mediation Society.

    #ADR #mediators #mediation #conflict #lawsuit #construction #legal #litagation #alternativedisputeresolution #negociation #dispute #finra #themediationsociety

    © 2024 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

  • Differences Between Mediation & Arbitration

    Differences Between Mediation & Arbitration

    The Differences Between Mediation and Arbitration – yan-krukov-7640796

    Alternative dispute resolution (ADR) methods such as commercial mediation and arbitration have become increasingly popular in recent years. While these two approaches share similarities, they also have significant differences, each with its own set of advantages and disadvantages. In this blog post, we will explore the differences between commercial mediation and arbitration.

    Mediation

    Commercial mediation is a voluntary and confidential process that involves a neutral third party, known as a mediator, who helps parties negotiate and reach a mutually acceptable solution to their dispute. Mediation is an informal process that does not involve strict rules of evidence or procedure. It can be used in various commercial disputes, including contractual, employment, and shareholder disputes. One significant benefit of mediation is its flexibility, as parties can agree on the mediator’s qualifications, location, and time frame for sessions. Additionally, mediation is generally less expensive and quicker than arbitration or litigation.

    Arbitration

    Arbitration is a more formal process that involves a neutral third party, known as an arbitrator, who renders a binding decision on both parties. Arbitration can be used in various commercial disputes, including contractual, construction, and intellectual property disputes. Unlike mediation, the arbitrator’s decision is final and enforceable, and the process is governed by strict rules of evidence and procedure. However, arbitration also offers greater flexibility than litigation, as parties can agree on the arbitrator’s qualifications, location, and time frame for proceedings. Additionally, the rules of evidence and procedure are generally less formal than those in litigation, making arbitration a more accessible and efficient process.

    In conclusion, both commercial mediation and arbitration are valuable ADR methods in resolving commercial disputes. Mediation is a more informal and flexible process that relies on parties’ agreement to reach a mutually acceptable solution. In contrast, arbitration is a more formal and binding process that involves a neutral third party’s decision. Ultimately, the choice between mediation and arbitration depends on the nature of the dispute and the parties’ goals and preferences. By understanding the differences between these two approaches, parties can make informed decisions when selecting an ADR method to resolve their commercial disputes.

    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.

  • 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 Comprehensive Mediation Agreement?

    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.

    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.

  • If I, as mediator, give my opinion in a dispute, doesn’t that mean I am biased?

    FAQ_Mediation Mendocino 03 opinion
    Is an opinion bias?

     

    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.

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

    Ken Strongman, MediatorAbout 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.

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

  • What am I getting for my money when I hire a mediator?

    Hire a mediator
    Hire a mediator.

    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”.

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

    Ken StrongmanAbout 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.

    © 2021 Ken Strongman. All Rights Reserved. Please do not copy or re-post without permission.

  • FAQ: Are Retired Judges Better Mediators?

    Stinson Beach, Dip Sea Trail, CP XC Team

    FAQ: Are Retired Judges Better Mediators?

    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.

    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.

  • What am I getting for my money when I hire a mediator?

    Hire a mediator
    Hire a mediator.

    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”.

    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.

  • If I, as mediator, give my opinion in a dispute, doesn’t that mean I am biased?

    FAQ_Mediation Mendocino 03 opinion
    Is an opinion bias?

     

    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.

    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.

  • FAQ: When Does Mediation Really Start?

    FAQ_Mediation Golden Gate - start
    When does mediation start?

    When does mediation start?

    People tend to believe that mediation begins when all concerned parties meet in the mediation room and take their places at the mediation table.  Mediation begins when disputing parties agree to participate in a private mediation or when a Judge suggests that they attempt mediation.

    Pre-mediation

    This pre-mediation phase is frequently overlooked and underestimated for the potential power it has over the outcome of a mediation session.

    Preparation is the Key

    Would any one perform in a play without holding a rehearsal?  The answer obviously is “No.”  Yet, people often go into mediation with very little or no preparation for what could be one of the most important days of their lives.  This is even more significant when you consider that decisions made during mediation can have critical, life-changing effects for not only the disputants, but for their companies as well.  Therefore parties should not overlook this phase and begin detailed preparations for the mediation.

    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.