Ken Strongman, Esq. – Mediator

Tag: arbritration

  • Is a Retired Judge a Better Mediator?

    retired judge
    Does a retired judge make a better mediator?

    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.

  • How long should mediation take?

    FAQ_Mediation Golden Gate long
    How Long?

    How long should mediation take?

    We have grown used to life happening instantaneously. What we forget is that despite all the fast and furious technology, we remain human beings. We may be more sophisticated overall, but are otherwise no different than we were thousands of years ago. Our thought processes and decision-making ability have not evolved along with technology and to expect otherwise is to set ourselves up for disappointment, if not failure.

    Too many people approach mediation as a finite process, allowing only two or three hours, with the expectation that the dispute will either be resolved or it won’t, but the process will be complete. Sometimes they are correct, but in most cases, this is a mistake that dooms the process to failure. Regardless of the dispute involved, mediation is a personal process that needs to occur in human time. Without exception, at least one of the participants in the mediation will have some very personal issues to confront and assess in making the decisions asked of them. Because the point of mediation is “resolution” rather than merely “settlement”, it is unfair and often impossible to rush this.

    It is always best to have an open-ended amount of time available when scheduling mediation, in order to allow for the possibility of prolonged discussions. If you are unable, for whatever reason, to give the process this time in a single session, let me, as your mediator, know at the outset, and allow for the possibility of further discussions in the future.

    Allowing people the ability to process information in their own time, whether at the mediation session or subsequent sessions, will lead to greater contentment in resolution and a greater likelihood of finality to the dispute involved.

    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 actually getting for my money when I hire a mediator?

    Bonita Cove from Point Bonita Lighthouse Trail

    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.

  • Who should attend the mediation?

    Golden Gate Bridge, Marin Headlands.
    Who should attend the mediation?

     Who Should Attend the Mediation?

     All parties involved in the interactions that gave rise to the dispute should be involved in the mediation. This helps me, as mediator; crystallize with the parties exactly what happened. A party may also be more candid with me when they know they may be faced with others who know exactly what happened.

    It is essential that all insurance carriers are represented at the mediation and that they have full authority to settle the dispute.

    In addition, for parties to a dispute, letting go of emotion is often critical to the ability to resolve a dispute. An acknowledgement of damage or expression of remorse from an opposing party or a participant in the interactions that gave rise to the dispute (without any admission of liability, of course) can make the difference. This can’t usually be done by anyone but those personally involved in the dispute.

    Bringing your witnesses (party, corporate or independent) to a mediation (even if they spend all their time in a separate room), can accomplish some important things, particularly when the facts are in dispute or emotions run high. Meeting and speaking with witnesses allows a mediator to provide you with an opinion as to their credibility and the likelihood of their being persuasive with an arbitrator, judge or jury.

    Every situation is different and you should talk to me, your mediator to see what would be appropriate for your mediation.

    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.

  • Why did the mediator stop the mediation without resolving the dispute?

    Stinson Beach, Dip Sea Trail, CP XC Team
    Stop the mediation?

     Why did the mediator stop the mediation without resolving the dispute?

    As valuable as it is for me, as mediator, to know how to move a dispute to resolution, it is equally important, if not more so, for me to recognize when a dispute isn’t prepared for resolution and how to move it in the right direction. With the exception of reaching resolution, this is one of the greatest benefits of mediation.

    Some of the most successful mediations are those in which the parties never even get to a discussion of money or resolution in the initial mediation session, but evaluate where the case is, where it needs to be and who needs to be involved, in order to achieve the greatest productivity in mediation. At this initial session, the parties through my guidance develop a plan with specific “homework” to be completed before reconvening at a different date.

    This “homework” may mean spending some time and money on investigation or making a more cooperative effort between the parties in sharing existing information. Regardless, once this is done, the dispute is usually postured for a realistic and informed evaluation. Often, once the “homework” is complete, further mediation becomes unnecessary and these matters are able to resolve through the efforts the parties alone.

    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.

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

    FAQ_Mediation Mendocino 03
    My 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.

  • Arbitration, then Mediation, a way to blend them both.

    Arbitration-Mediation
    Blend mediation and arbitration

     Arbitration, then Mediation, a way to blend them both.

    Many view mediation as a one-way street.  You conduct a mediation to settle a law suite.   Nothing could be further from the truth.  There are many ways to blend mediation with the legal system or blending it with other alternative dispute resolution processes to reduce or resolve conflict. 

    One way is to blend arbitration and mediation so that the participants have the benefits of both arbitration and mediation.

    The process begins with binding arbitration before a single arbitrator.  At the conclusion of the arbitration session, the arbitrator immediately issues a binding decision and proceeds to seal it so neither the parties nor council know the result. 

    Immediately following the arbitration, mediation is conducted by a different neutral. This mediator, like the parties, also does not know the content of the sealed arbitration decision.   If the mediation ends in a settlement, the arbitration decision is destroyed and the parties never learn how it turned out. However, if the mediation does not result in a settlement, the arbitration award is unsealed and disclosed, at which time it becomes final and binding. 

    This process of sealing the decision and potentially destroying the arbitration decision, if a settlement is reached, is negotiated between the parties and the arbitrator.  It is accomplished in the arbitration service agreement.  The length of time allowed for mediation must also be explicitly outlined in the agreement to arbitrate.

    There are significant advantages to this arbitration-mediation model.  First, it brings prompt finality to the litigation process, either though a binding arbitration award, or else through a mediated settlement. 

    The procedure also diminishes the overall cost of litigation.  The actual cost of presenting a case in arbitration is significantly lower that a one to two week trial, stipulations between the parties can further streamline and simplify the issues.  Medical expert opinion can be presented through medical reports, declarations and records. 

    There are other benefits beyond cost savings.  The arbitration-mediation process encourages a more cooperative, less adversarial framework for resolving cases.  The protocol allows parties and key claims personnel, such as the adjuster in charge of the file, to see how key witnesses present themselves at the binding arbitration prior to engaging in mediated settlement discussions.  It also solves the case at a much earlier date that the potential four-year wait until trial. 

    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.

  • I want to resolve the dispute, but the other party’s demands are unreasonable. What should I do?

    FAQ_Mediation Mendocino 02

    I want to resolve the dispute, but the other party’s demands are unreasonable. What should I do?

    I want to resolve the dispute, but the other party’s demands are unreasonable. What should I do?  Don’t let yourself get stuck refusing to make what you believe is a reasonable settlement offer or demand based on your opinion that the opposing party has made an unreasonable one! Instead, attempt to resolve disputes based on your reasonable evaluation. It is my job as mediator to assess, based on all the information presented, “the realm of the reasonable” in the context of potential resolution of each specific dispute and to bring the parties to that range.

    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.

  • I’ve been in mediation and there was so much conflict that nothing got done. Wouldn’t I be better off just going to court?

    court
    Going to court.

    I’ve been in mediation and there was so much conflict that nothing got done. Wouldn’t I be better off just going to court?

    This is an option, but you may not resolve your dispute. Mediation is not about coming to the table as friends to avoid conflict and confrontation, as many professionals would have you believe. It’s about resolving disputes. Inherent in the concept of “dispute” is conflict and without confrontation of that conflict head-on, there may be settlement, but there may be no true resolution.

    In some disputes, settlement itself may be enough, but in most, in addition to the economic or performance related issues, there is an undercurrent of emotion, and both sides often perceive themselves as a “victim” in the dispute. Those complaining of a wrong see themselves as the aggrieved party. Those responding, because they often believe they are involved in the dispute needlessly, feel abused by the claimant and the dispute process, particularly when facing the burdens of litigation.

    You may wish to avoid confrontation at the outset but may find, as the process continues, that you want to express yourself to other parties. Make sure you talk to me as your mediator to allow this flexibility. In a truly meaningful mediation, in addition to providing valuable information to you about the dispute, I will guide you safely through confrontation of the conflict to resolution.

    Remember that Mediation is Conflict at its best.

    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.

  • Arbitrator’s Duty to Avoid Potential Conflicts

    There needs to be an absolute appearance of being impartial.
    avoid conflicts

    Arbitrator’s Duty to Avoid Potential Conflicts

    Upon accepting an appointment, arbitrators should always avoid entering into any financial, business or other relationship that is likely to affect impartiality or might reasonably create an appearance of partiality or bias. For example, an arbitrator should not accept any engagement involving a party while an arbitration case is pending, nor do so for a reasonable period of time after the case concludes. Likewise, arbitrators should disclose previous cases for which they were retained that involved any party, counsel or witness in the current 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.