Ken Strongman, Esq. – Mediator

Tag: conflict resolution

  • 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.

  • Task #8: How will you know you have developed an agreement at the end of the mediation?

    Task #8: How will you know you have developed an agreement at the end of the mediation?

    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 #8: How will you know you have developed an agreement at the end of the mediation?

    Using your results from Tasks 6 and 7, what objective criteria could you use with the other parties to the mediation to develop a fair and constructive voluntary agreement to settle the matter?

    Mediation is not “splitting the baby” or just splitting the difference between the parties.  But it is composed of hard negotiations between the parties.  It is important to begin constructing for yourself just what a voluntary agreement between the parties would look like.  Remember each party will be doing the same, so each will have to believe that the settlement is fair to them as well.

    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 #7: What do you truly disagree upon with your mediation opponents?

    Task #7: What do you truly disagree upon with your mediation opponents?

    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 #7: What do you truly disagree upon with your mediation opponents?

    In Task #6, you were asked to search for some potential common ground you might have with your mediation opponents to help facilitate a voluntary agreement to settle this matter.   Now you need to flip the question around and come up with the significant issues that you disagree upon.

    Strangely enough this will help the mediator to focus the mediation session upon the real and lasting issues of the dispute.   Then everyone can focus on the task at hand to develop together a voluntary agreement to resolve the dispute.  For example, breach of contract might be agreed upon, but whether it is a major or minor breach is the true disagreement.  Likewise, there might not be a disagreement on liability but it is the measure of damages that is the true dispute.   Even then, there might be considerable agreement.

    Review these disagreements with your attorney and confidentially with the mediator.

    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 #6: Do you agree on anything?

    Task #6: Do you agree on anything?

    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 #6: What do you and the other parties agree upon? 

    These can be significant or minor issues in the dispute.   Anything will do.  The purpose is to build a voluntary resolution to the dispute.

    Can you agree that there is a dispute?  If you can’t agree to that there is a dispute, then what will we have to do to have a successful mediation?

    Other more obvious agreements might be:  Is there a written contract?  Is this the contract?  Does each party have enough information to evaluate the case?  Can you agree on dates, times, people involved significantly in the dispute?.

    Be prepared to not only share your results with you attorney but with the mediator as well.  Because of your efforts now, at the mediation you will be able to cut though to a voluntary agreement almost effortlessly.

    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 #5: Do you really want to settle this dispute through mediation?

    Task #5: Do you really want to settle this dispute through mediation?

    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.

    The purpose of mediation is to reach a voluntary agreement with the other parties.  It is not something imposed upon the parties by the mediator. It’s your choice to decide to reach a voluntary agreement rather than to continue to fight.

    Task #5: Can you work towards a voluntary agreement if it would satisfy your interests and the interests of the other parties?

    You will need to discuss this issue with your attorney and the mediator.  If you are not willing to cooperate with the other parties to find a voluntary solution to the problem, then your attorney and the mediator need to decide if a mediation session at this time is appropriate.   It would not benefit you, if you were not willing to arrive at a solution the dispute.

    As the mediator, I would want to discuss with you and your attorney what the impediments to reaching a solution to the problem.   Once these impediments are identified, we can develop potential solutions.

    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 #4: How are you going to deal with them after the dispute?

    Task #4: How are you going to deal with them after the dispute?

    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 #4: How are you going to deal with them after the dispute?

    In the previous task, you were asked to describe what you wanted life and/or business to look like five years after the dispute has been resolved.   This task is more focused on how you are going to deal with your opponents five to ten years after the dispute is resolved.

    The easy answer to this question is that ‘I never want anything to do with them again.’  If the dispute is an automobile accident then that might work as an answer.  But if your opponents are commercial suppliers, customers, fellow businesses in a limited market, employees or employers, neighbors, and even family, the question becomes a lot more challenging.

    I have mediated boundary line and other disputes between neighbors.  It becomes a lot more difficult to resolve when both neighbors realize that they will still be living next door to each other for possibly decades.  I have also mediated disputes with family owned business.  They had to take into account the likelihood of having to sit down for Thanksgiving dinner with each other.  There were also the unintended impacts on other family relationships that were not in dispute.  Commercial enterprises need to evaluate the publicity of the dispute and the possible need for an on going business relationship now and in the future.

    Carefully list and count the costs regarding different solutions to the dispute.  Might there be a better settlement that reduces future conflict.  Also evaluate the costs of litigating the dispute to its conclusion on the future relationship to your opponents.

    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 #3: Visualize the future beyond the dispute.

    Task #3: Visualize the future beyond the dispute.

    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 #3:  Where do you want to be in five years after this mediation? 

    Develop a basic description or visualize what life and/or business would be like in five to ten years?  What does life and/or business look like after the resolution of this dispute?  How will you spend your time, money and talent?

    The purpose of this exercise is to get you to think what life might be like after the resolution of this dispute.  Right now you are in the middle of the dispute and its immediate aftermath.  You have spent time – a lot of time, money and energy on various aspects of the dispute.   If it is a commercial dispute, you will have gone through the disruption of preparing and doing the discovery process.  If it is personal injury, you will have endured lost work while being deposed in depositions.  You have spent considerable time wondering if you will win in court.  Have you spent time thinking about life after the dispute is resolved.  What does that look like?

    Discuss this with your attorney and confidentially with your 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 #2: What do they want out of the mediation?

    Task #2: What do they want out of the mediation?

    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 #2:  What do they want?

    You know that you have interests that need to be satisfied when you attend the mediation, the other side also has interests.  What are those interests?

    They have communicated their interests to you through a variety of means.  What do you think those interests are?  They can be money, time, minimize their risks, fairness, maintain a working relationship, etc.  List and rank them.

    It is important to realize that your legal opponents do want something out of the dispute and that they are willing to spend time, money and legal talent in order to get it.   This does not mean that they will succeed.  It just means that there are things you can use as bargaining chips.

    It is entirely possible that you might have some of the same interests.  This is also an opportunity to create a solution outside of the box.  Realizing this possibility will help reach a settlement easier at least on certain issues.

    Review the list you have created with your attorney and be prepared to discuss it in confidence with your 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 #1: What do you want out of the mediation?

    Task #1: What do you want out of the mediation?

    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 #1:  What are your basic interests as you approach the resolution of this dispute?  List them in rank order.  Examples to consider are money, revenge, fairness, maintaining a working relationship, security.

    To expand one example even further: it is important to come to grips with what your future relationship with the other party will be.   It makes a tremendous difference in the solution if you see yourself having to socialize or to do business with the other party in the future.  Naturally, if it is a personal injury case such as an auto accident, there was little to no prior relationship and probably not much need for a future relationship.  But even then, you might want to leave open the possibility of a relationship.  It might be a slip and fall in front of a business that you have patronized and would like to continue doing business in the future despite of the slip and fall.

    The purpose of this exercise is to fully understand what you as a mediation participant really wants at the onset of the mediation.  Often by the time you arrive at this point in the process, it has been forgotten.  Review the list with your attorney and 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.

  • My Purpose for blogging: Where to we go from here?

    Where to we go from here?

    My primary purpose for this blog is to inform practitioners and participants in mediation, negotiations, other forms of alternative dispute resolution and risk management.

    I want to provide a mostly systematic overview of the full range of dispute resolution options: risk management or the avoidance and minimization of conflicts, negotiation, mediation, arbitration.  I also want to demonstrate how to effectively use each option for each situation.  From time to time, the blog will delve into issues involving legal ethics and social media.

    I want to have a dialog with you on these issues and thereby helping all of us to improve our skills and knowledge.

    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.