Ken Strongman, Esq. – Mediator

Tag: Business 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.

  • Find Allies in Your Opponent in a Conflict.

    Allies
    Look for Allies

    Find Allies in Your Opponent in a Conflict.

    Find Allies:  Management expert Margaret Heffernan postulated this counter intuitive idea learned in her years running businesses and organizations in her TEDGlobal 2012 presentation.

    Naturally, the first ally you should seek is your mediator.  As a mediator, it is my job to be your ally and to help you make your opponent an ally to settlement as well.  We do this together by asking tough questions.  Besides the tough questions about the dispute, I also ask broader based questions.

    Ms. Heffernan suggested several general questions to help in this process:

    • Are you okay with this?
    • Does anything about this bother you?
    • Is there another way to frame this question?

    Having allies allows you to work together

    Having allies allows you to work together to be creative and solve the problem.  In her talk, Heffernan shared a stunning statistic: 85% of executives had concerns with their company that they were afraid to raise, out of fear of the conflict that would ensue. Heffernan warns that this not only means that businesses aren’t getting the best work out of their employees, but that issues which could be nipped in the bud internally perpetuate themselves.  Therefore don’t avoid conflict – embrace it.

    Margaret Heffernan

    Margaret Heffernan (born 1955) is an international businesswoman and writer. She was born in Texas, raised in the Netherlands, educated at Cambridge University and settled in the UK near the city of Bath.

    She is the author of five books: The Naked Truth: A Working Woman’s Manifesto about Business and What Really Matters, How She Does It (published in paperback as Women on Top), Willful Blindness: Why We Ignore the Obvious at our Peril, A Bigger Prize: Why Competition isn’t Everything and How We Do Better, and Beyond Measure – a short book commissioned by TED.

    While Heffernan’s first two books focused on these issues as they impact women in the workplace, her overarching theme has been the need to recognize and release the talent that often lies buried inside organizations, under-valued and under-rewarded because it is unconventional. Heffernan’s voice is primarily one of critical challenge, taking little at face value and regularly questioning received wisdom.

    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.

  • Mediation outside the USA in Europe – the differences

    Outside the USA
    Mediation outside the USA

    Mediation Outside the USA in Europe

    My Mediation Society Colleagues, Bruce Edwards, Patrice Prince and Dana Curtis shared their observations on Mediation in Europe at a recent breakfast meeting. They attended the International Summer School on Business Mediation in Admont, Austria this last summer.  Here are some of their observations European Mediation from my notes:

    • Mediation is a social process not a legal one.  In the USA, mediation is associated with the courts.  In Europe they do not mediate in the shadow of the law.
    • They work at “dispute design”.  In other words they are looking at the organization to see how they might eliminate the points of potential conflict.  They do not concentrate on the individual dispute between individuals.  Over 80% of the firms in Europe are family owned.  Therefore any dispute has family issues involved.
    • They view mediation as a social and psychological process and not primarily a legal process.
    • And finally, there are few retired judges doing mediation.

    The International Summer School on Business Mediation (ISBM)

    The International Summer School on Business Mediation (ISBM) is an international event presented by and for business mediators. Since 2012 it is also for consultants, executives and managers. Every two years, participants from all over Europe and the United States come together for a week to work and live jointly.
    Each annual conference program is organized around a central theme, with a variety of theoretical and methodological approaches developed in different professions and disciplines. Discourse at both practical and conceptual levels enables each participant to integrate new methods into his or her current mediation approach and to develop further his or her own stance as a 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.

  • 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.

  • Our friend the Devil’s Advocate.

    Our friend the Devil’s Advocate.

    Our friend the Devil’s Advocate is the first of Margaret Heffernan’s counterintuitive guidelines. It is useful conflict resolution to appoint a devil’s advocate.  Someone whose excellence is demonstrated by the quality of questions they asked.  Great questions include:

    • What are the best reasons not to do this?
    • Why are we here today?
    • What don’t we know that, if we did know, would change our decision?
    • What is wrong with our case?
    • If we had more money or time, what would we do?
    • Where do we want to be in 5-years?
    • If this were a documentary, what would be the narrative arc?

    Generally, it’s important that different people play the role of devil’s advocate.  If it is always the same person, the group will tune them out and they will get burned out.  But it is the mediator’s role to ask these and other hard questions.  That is the only way we can achieve a useful settlement.

    Margaret Heffernan (born 1955) is an international businesswoman and writer. She was born in Texas, raised in the Netherlands, educated at Cambridge University and settled in the UK near the city of Bath.

    She is the author of five books: The Naked Truth: A Working Woman’s Manifesto about Business and What Really Matters, How She Does It (published in paperback as Women on Top), Willful Blindness: Why We Ignore the Obvious at our Peril, A Bigger Prize: Why Competition isn’t Everything and How We Do Better, and Beyond Measure – a short book commissioned by TED.

    While Heffernan’s first two books focused on these issues as they impact women in the workplace, her overarching theme has been the need to recognize and release the talent that often lies buried inside organizations, under-valued and under-rewarded because it is unconventional. Heffernan’s voice is primarily one of critical challenge, taking little at face value and regularly questioning received wisdom.

    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’m tired of being called a Mediation Neutral.

    I’m tired of being called a Mediation Neutral.

    Most Mediators describe themselves as being neutrals. I’m tired of being called a Mediation 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.

    Mediation Neutral

    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.

  • We need more conflict in our lives.

    We need more conflict in our lives.

    Management expert Margaret Heffernan postulated this counterintuitive lesson learned in her years running businesses and organizations in her TEDGlobal 2012 presentation.

    Her insight has great implications for successful mediations.  I have always contended that mediation is conflict at its best and her insight bares this out.   Heffernan has developed five guidelines for productive disagreement:

    1. Appoint a devil’s advocate
    2. Find allies
    3. Listen for what is NOT being said
    4. Imagine you cannot do what you all want to do
    5. After a decision is made, declare a cooling off period

    These are counterintuitive guidelines because it is assumed in mediation as well as life that we need to avoid conflict; smooth it over if we have to and compromise if all else fails.  Our job is not to avoid, smooth over or compromise, it is to find a better way.

    Margaret Heffernan (born 1955) is an international businesswoman and writer. She was born in Texas, raised in the Netherlands, educated at Cambridge University and settled in the UK near the city of Bath.

    She is the author of five books: The Naked Truth: A Working Woman’s Manifesto about Business and What Really Matters, How She Does It (published in paperback as Women on Top), Willful Blindness: Why We Ignore the Obvious at our Peril, A Bigger Prize: Why Competition isn’t Everything and How We Do Better, and Beyond Measure – a short book commissioned by TED.

    While Heffernan’s first two books focused on these issues as they impact women in the workplace, her overarching theme has been the need to recognize and release the talent that often lies buried inside organizations, under-valued and under-rewarded because it is unconventional. Heffernan’s voice is primarily one of critical challenge, taking little at face value and regularly questioning received wisdom.

    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.

  • Task #11: What’s wrong with the other side’s case?

    Task #11: 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.

    Task #11:  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.

    © 2013 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

     

  • 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.

  • 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.