I’m privileged to be an adult staff member for a National Youth Leadership Training (NYLT) course.It is a very satisfying experience and a lot of fun.One key topic on the course is how to resolve conflicts as a leader.This blog is adapted from this course.
Leading the youth through this necessary topic allows me to bring my professional expertise in settling disputes to the more practical issues of conflict resolution.The course can be applied to any situation as a young person or adult.
The learning objectives of the conflict resolution course are:
Know and articulate several ways that good leadership can minimize conflict.
Understand how the acronym E.A.R.can be used as a tool for resolving conflicts (Express, Address, Resolve).
Use several communications skills important for resolving conflicts
Know when, as a leader, the resolution of a conflict is beyond your expertise and how to seek help in resolving the conflict.
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.
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.
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.
Task #16: At what point did you first have any realization of betrayal, bad faith, or loss of confidence?
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.
In the previous task, you spent time determining the trust and goodwill that supported your original agreements. Now we need to look at the point when you had your first realization of betrayal, bad faith, or loss of confidence. This is generally one specific point of time and place. It might have been building in the back of your mind for some time, but there is usually a point that you change your mind about the relationship with the other party. It can be as simple as one phone call not returned, or a dirty look. It is often after miss communication between the parties.
Knowing when this missed communication occurred will be helpful to you in the mediation. In one of my mediations, it was obviously a missed communication between the parties. Both parties knew what the problem was and when it occurred. With that knowledge they were able to correct the problem, restore trust and goodwill between themselves and quickly settle the 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.
Task #15: How did you evaluate the trust and goodwill that supported your original agreements?
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.
Particularly in business disputes whether they are real estate, construction defect, general business or even intellectual property issues, there would have been a meeting of the minds before the deal was done. That is the essence of a contract. To get to meeting of the minds you would have had to evaluate the other party and their proposal. More specifically you have to decide if you can trust them to carry out their side of the bargain. With this task you need to go back and look at the trust and good will that was developed when you made the contract. What made you trust them in the first place? What did they say and or do to generate your trust in them?
This is important because you may want an ongoing relationship with them after this dispute is resolved. On the other hand you may not want to have a business relationship with them but out of necessity be forced to have a business relationship.
By evaluating the good will you will be able to see what was good in the original deal. It will also help you evaluate the eventual settlement agreement that you and they will be developing within the 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.
Mediation is conflict at its best. All of the tools, I, as a mediator brings to the mediation help manage the conflict to a great resolution.
Management expert Margaret Heffernan postulated five counterintuitive guidelines 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 it best and her insight bares this out. Heffernan has developed five guidelines for productive disagreement.
Appoint a devil’s advocate
Find allies
Listen for what is NOT being said
Imagine you cannot do what you all want to do
After a decision is made, declare a cooling off period
These are counter intuitive 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.
Explains Heffernan: “All of these guidelines are neutral and designed to aid exploration rather than judgment. There’s never any reason not to try these — who doesn’t want to make better decisions?”
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.
Margaret Heffernan final counterintuitive idea to encourage healthy conflict would be after a decision is made, declare a cooling off period. Her suggestion is to ask everyone to go home and think about the decision on their own as well as discuss it with their associates. Then come back after a prescribed amount of time and ask the group: does the decision still look great?
In the real world that is a great idea but not always practical. That is why I prefer to allocate the entire day to my mediations. It allows everyone time to cool off through out the day and to make the emotional journey towards a great settlement. It is still an emotional journey even if the dispute is a multi-million dollar construction defect case or paten infringement case.
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.
Here is the article that was just published in the Contra Costa Lawyer, Volume 26, Number 1- January 2013. I am starting an exciting years as Chair of the ADR Section of the Contra Costa Bar Association.
Meet Your Section Leaders – Alternative Dispute Resolution
How has section membership benefited your practice?
I joined the ADR Section so that I could be on the cutting edge of the way we resolve disputes in our society, including the way we litigate in California. I did it so that my corporate clients would always benefit from the earliest thoughts and processes available and that my mediation practice would correspondingly expand and be the best it could be.
On my own, I would have had zero influence on the profession. As part of the ADR section, we collectively help direct the future of Alternative Dispute Resolution processes in Contra Costa and the State of California. This has allowed my practice to be in the forefront of ADR. Rarely will my general counsel clients be criticized for selecting me as a mediator. They are able to confidently tell their parties that they tried everything to avoid litigating and incurring additional legal fees and their company bosses can then assure their directors and shareholders that they have retained the best.
Besides being on the forefront of ADR, we are able to advise Courts and members of the Bar as to the best practices ADR has to offer. Currently, we are actively helping the Courts develop rules, policies and procedures to avoid having justice grind to a halt in our current Court budget crisis. I am also able to modify my practice to prepare for the coming changes in rules, policies and procedures.
At every one of our programs, be it a formal presentation or informal roundtable, I learn something new that will benefit my mediation practice in concrete ways. Every one of our events is designed to benefit the ADR practitioner – whether it be a roundtable on mediation practice marketing, or our yearly specialized class on How to Mediate with Self Represented Litigants.
Why should someone join the ADR Section?
By joining the section, ADR practitioners and those who participate in ADR as an advocate for their clients will benefit themselves and their clients in knowing the direction of dispute resolution in Contra Costa and the way litigation will occur in California in the continuing Court budget crisis
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.
Imagine you cannot do what you all want to do. Management expert Margaret Heffernan postulated this counterintuitive idea learned in her years running businesses and organizations in her TEDGlobal 2012 presentation.
In other words, think about what you would do if you could fire someone, if you could change the timetable, or if you were allowed to cancel the deal. If you could do any of those things — would you still proceed with your plan? What are the hidden orthodoxies nobody is challenging?
To resolve conflicts we all have to think outside the box. Often times in mediation, what one party wants can’t happen. This occurs even if they would have won in court. The mediator’s job is to help them to see what the various true outcomes might be.
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.
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.
Task #14: Looking at the previous two questions, where do you think THEIR perspective differs from your own.
Looking at the previous two questions below, where do you think THEIR perspective differs from your own.
Task #12: What important understanding did you think you had when you originally got involved together?
Task #13: In a dispute, 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.
Your exercise now is to answer the same questions that you have worked through but from their point of view. Maybe they think the honeymoon phase ended at a different time and way. What was their vision for the future of your relationship at the beginning of the agreement? How much money did they think they were going to make? Was this agreement a stepping stone to something else? Without trying to look at the problem from their point of view, will you both find a way forward?
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.
Listen for what is NOT being said is counter-intuitive, but very important. You need to find the elephant in the room. Listening for what is not being said is the primary job of the mediator. What we do is listen, clarify and re-frame. We may notice trends that people embroiled in the conversation simply can’t see. We give our impressions – not recommendations.
Margaret Heffernan postulated this counter-intuitive idea by using the following re-framing questions:
If the conversation is being framed about money, consider what is not being talked about.
If everyone’s talking technology, what have they left out of their equation?
the key component of a successful mediation
Listening is most likely the key component of a successful mediation. Everyone has to listen to all aspects of the conflict in safe surroundings. That’s why I say that mediation is conflict at its best.
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.
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.
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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.
