Ken Strongman, Esq. – Mediator

Tag: Ken Strongman

  • Listen for what is NOT being said.

    said
    Listening to what is not being said

    Listen for what is NOT being said

    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.

    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.

  • How to stay on the cutting edge of mediation

    cuttting edge
    Cutting edge of mediation

    How to stay on the cutting edge of mediation

    The cutting edge of mediation. Recently, I wrote an article for our local Bar Association Journal on why someone would want to join the ADR section of the Bar.  As the new Chair of the ADR section, was also needed to describe how membership has benefited my practice.  It was an easy assignment.

    Some would want you to join the ADR Section so that you can give back to the legal community. I didn’t join for that reason.  I became involved so that I could be on the cutting edge of the way we resolve disputes in our society.  That includes the way we litigate in California.  I did it so that my corporate clients would always benefit by the earliest thoughts and processes available. Also, 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. As leader of the ADR section, I see the new processes way before presentation to the general public and legal community.  We are making suggestions that would influence the result.  I am also able to modify my practice to prepare for the coming changes in rules, policies and procedures.

    The ADR Section

    Within the ADR section by virtue of being around other mediators, we mentor each other on a continuous basis.  At every one of our programs I learn something new that will benefit my mediation practice in concrete ways.  It doesn’t have to be the formal presentations to be useful.  It is often the informal conversations with other members that are the most helpful to my practice.

    Every one of our events benefit the ADR practitioner.  Last year we held a round table on mediation practice marketing.  I came away with several ideas to help market my practice through social media.  At the same presentation, I learned what not to do so that I could spend little time and money marketing and more time devoted to mediating complex disputes.

    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 #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.

  • Arbitrator’s Duty to Avoid Potential Conflicts

    There needs to be an absolute appearance of being impartial.
    avoid conflicts

    Arbitrator’s Duty to Avoid Potential Conflicts

    Upon accepting an appointment, arbitrators should always avoid entering into any financial, business or other relationship that is likely to affect impartiality or might reasonably create an appearance of partiality or bias. For example, an arbitrator should not accept any engagement involving a party while an arbitration case is pending, nor do so for a reasonable period of time after the case concludes. Likewise, arbitrators should disclose previous cases for which they were retained that involved any party, counsel or witness in the current 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.

  • 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.

  • Arbitrator’s Duty to Neutrality

    Duty to be impartial and neutral.
    Duty to be impartial and neutral.

    Arbitrator’s Duty to Neutrality

    It is the Arbitrator’s duty to be impartial and neutral throughout a proceeding. Impartiality extends to parties, counsel, agents, witnesses, co-panelists and even the type of case involved. Arbitrators must be impartial in both appearance and in fact. Arbitrators are viewed by parties in an arbitration case much as a judge would be viewed in a court of law. In some ways, arbitrators have greater power than a judge for example except for limited reasons; arbitration awards generally cannot be appealed. Therefore, it is particularly important in arbitration that the forum be fair and be perceived to be fair.

    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.

  • 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.