Tag: Commercial Mediation

To Mediate or Not?

The key issue is whether a party is ready to seriously attempt a negotiated settlement. If a party is insisting on pre-conditions to a mediation or sees the mediation as an opportunity to “send a message” rather than an opportunity to resolve, then there may be little prospect that a successful resolution can be reached. However, once the parties are engaged in the process, even an apparently unwilling or reluctant participant may see the benefit of reaching a resolution.

There are very few types of disputes that cannot be mediated. An often cited example is judicial review where the issue is whether a public body or authority exceeded its powers. However, that does not mean that all judicial reviews are incapable of being resolved through mediation.

If one party or the Court proposes mediation, the other party is entitled to refuse to mediate or at least to state that they are not ready to mediate yet. Once mediation is proposed, there is no obligation to agree. However, a party who refuses to mediate should not take this decision lightly as this may have cost implications.

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.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

FAQ: When is mediation appropriate?

Mediation can take place at any stage from before legal proceedings are issued up until trial and even after trial. Obviously, the earlier mediation takes place, the better chance of saving costs, avoiding publicity and possibly preserving future relations between the parties. However, at a later stage in proceedings mediation may have a better chance of success as the issues in dispute are more clearly defined, the parties are clearer on their strengths and weaknesses and the parties are more focused on the possible benefits and risks in terms of outcomes and costs.

I have successfully mediated disputes before legal proceeding were initiated.  Often times these are business disputes or intellectual property/high technology disputes.  The parties were quite aware that if they took their disputes to court, it would be years before there was a resolution.  By that time, new technology innovations would make their dispute seem old and tired though legally valid.

I have also successfully mediated disputes after trial.  In these cases, one party does have a judgment from a court, but both parties want to completely end the litigation and stop any appeals that might negate the judgment.  

Naturally, mediation is appropriate and anytime.  Often a party has to file the lawsuit to preserve their legal rights and to put on notice to the other parties that there really is a dispute. 

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.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

Role of the Mediator

The role of the mediator is not set in stone. Typically the mediator acts as a neutral third party and facilitates rather than directs the process. At all times, the parties and not the mediator control the outcome of the process.

Establish a Process

A good mediator is somebody who is able to establish a process, keep that process moving and build on any momentum that may develop during the course of the mediation. A good mediator will quickly identify and understand the key issues and may challenge the parties to consider their respective strengths and their weaknesses as well as the future implications if the parties fail to reach a negotiated settlement.

In the mediations I conduct, I work hard to keep the parties working towards solutions.  I firmly believe that we are not done until we have a solution or solutions to all disputes between the parties.  The key skill I use is to keep listening to the parties concerns, hopes and desires for a good outcome.

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.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

FAQ: What are the potential benefits of mediation?

It is:

• A voluntary and confidential process where participants determine the outcome for themselves rather than it being determined by a Judge, jury or an Arbitrator.
• Offers a wider range of possible outcomes than can ever be determined by a Court.
  Provides an opportunity for the parties to fully participate in the process and therefore, to feel very much part of a successful outcome.
• Avoids the potential risk of the significant costs in litigation.
• The mediator can act as an impartial facilitator to a resolution.
• Ideally suited to multi-party litigation or otherwise complex disputes.
• Mediation is also appropriate as a method of resolving interpersonal disputes such as those that arise in the workplace, in clubs, in an educational context, etc.
• Even an unsuccessful mediation can educate the parties on the strengths and weaknesses of their case and the risks involved which may facilitate resolution in due course.
• Can allow disputes to be resolved in circumstances where a necessary on-going relationship between the parties can be maintained.
• It provides a timely resolution where as going to trial can take several years.

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.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

Mediation is a form of alternative dispute resolution (ADR), which can be used as a way of resolving a dispute between two or more parties with the assistance of a mediator who acts as a neutral third party and facilitates the process with a view to the parties voluntarily negotiating a settlement of their dispute.  In all of the mediations in which I served as a mediator, I have never dictated the solution to the dispute to the parties.  I have offered suggestions and ideas that they may not have considered. 

Mediation usually has a structure, timetable and process established and agreed by the parties with the mediator which can help it to be a more effective dispute resolution process than a traditional settlement meeting. The process is private, confidential, without prejudice and non-binding, although the objective is to reach a resolution of the dispute by agreeing to binding settlement agreement.

It cannot be stressed enough that mediation is a completely voluntary process where the parties with the assistance and guidance of the mediator reach a solution to a dispute that is satisfactory to all parties.  The parties are in complete control of the solution. 

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.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

Do I have to have a lawyer at my mediation?

No, it is not necessary to have a lawyer representing you at mediation. If you have a lawyer already representing your interests in the dispute you would need to discuss this with him or her.  If you feel you need legal advice or that you are unqualified or uncomfortable dealing with the issues on your own, then you should consult a lawyer and perhaps hire someone on an hourly basis solely for the purpose of representing you at the mediation.

If, on the other hand, you are involved in a dispute that you feel comfortable resolving without a lawyer, keeping in mind that your mediator will not give you legal advice or advocate on your behalf, by all means, make an attempt to resolve it on your own first.

Do remember that the other party has a right to hire an attorney and to bring them to the mediation to help represent them.  If that scenario occurs, there will be no one to advocate your interests. You will not have a right to delay the mediation to hire your own attorney.

Mediation is a voluntary process that centers on discussions and decision-making, rather than judgment. 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 (sometimes, despite those rights). Often, the mere presence of an attorney creates an antagonistic and adversarial atmosphere that impedes resolution rather than assisting it.

It has been my experience that when the parties have attorneys and those attorneys are actively helping to resolve the issues, the mediation is more successful.  This does not mean that representing yourself in mediation is a no-win situation.  I have conducted many mediations where one or more parties were self represented.

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.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

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.

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.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

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.

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.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.