Tag: Commercial Mediation

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.

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”.

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.

 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.

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.

 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.

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.