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.
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.
What Murderers Can Teach Us about Mediation was the title of Doug Noll’s key note address to the ADR Section’s annual luncheon.A more descriptive title might have been What Can Convict Women Serving 25-Life Sentences’ With Little Possibility of Parole in a Maximum Security Prison Teach Us About Getting Along Peacefully with Our Neighbors.
Doug Noll and Laurel Kaufer have worked with such women teaching them conflict resolution skills and teaching them how to teach the same skills to other prisoners.It is hard to evaluate success in such a venture because most attempts at rehabilitation of prisons use recidivism rates to measure success.Here there are no recidivism rates to measure because these women most likely will never be released.But that is not to say that Doug and Laurel and the prisoners they work with don’t have success.The women are duplicating the work among other prisoners.Thanks to California Prison Realignment the program is growing and replicating itself in other prisons.
This is part four of my interview with Doug Noll.
How is Prison of Peace financed? or How do you pay for peacemaking?
Prison of Peace remains a pro bono effort of two lawyers unassociated with any organization, law firm, faith community, or group. We pay for everything out of our own pockets, including photocopying expenses, pens, paper pads, flip charts, and travel expenses.
We have received some grants, including $20,000 from the JAMS Foundation, to cover some of our costs. However, we have found that most foundations are not interested in supporting self-help work for inmates serving life sentences. In particular, women serving life sentences seem to be invisible in our society in general and philanthropic foundations in particular. We have a drawer full of rejections.
The Department of Corrections and Rehabilitation is well aware of our project, but because of budget cuts has no money to support us.
Tax-deductible charitable gifts may be made to our 501(c)(3) fiscal agent, the Fresno Regional Foundation, in Fresno, California.
Do you need volunteers? Why not?
At the moment, we do not have the infrastructure or finances to support a volunteer organization. Recruiting, training, scheduling, coordinating, and evaluating volunteers is
a full-time job by itself. We simply do not have the ability to do that. In addition, this work is extremely intense and requires complete and total dedication. When we say we will show up, we show up. There is no room for error here because the trust is so difficult to gain and so simple to lose. Thus, anyone interested in this work must recognize that it is a demanding calling.
What about the online classes in negotiations?
Because this work takes up so much time, it has cut into our ability to make livings as professional mediators. As a result, we have looked for other revenue sources. Out of this came the idea of developing advanced online legal negotiation training. I created a foundational course that is nine hours long called Negotiation Mastery for the Legal Pro www.legalpronegotiator.com. I have followed that with a master class webinar series in negotiation. All of the proceeds from the nine hour course and the webinars support the project. The course and the webinars are all MCLE approved in California. Information about the course and the webinars can be found at www.legalpronegotiator.com.
In 2014, I will be launching a new series of online classes for the general public. These webinars and classes will duplicate what we teach in the prisons. We hope to spread the word about these powerful techniques we have developed and provide another revenue stream to support the work. The website for that project is www.negotiateacenteredlife.com.
Alcatraz’s Broadway by ourselves at night.
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.
This is part three of my interview with Doug Noll detailing his work with Prison of Peace and his work with female murderers serving in California prisons.
Doug Noll and Laurel Kaufer have worked with such women teaching them conflict resolution skills and teaching them how to teach the same skills to other prisoners.It is hard to evaluate success in such a venture because most attempts at rehabilitation of prisons use recidivism rates to measure success.Here there are no recidivism rates to measure because these women most likely will never be released.But that is not to say that Doug and Laurel and the prisoners they work with don’t have success.The women are duplicating the work among other prisoners.Thanks to California Prison Realignment the program is growing and replicating itself in other prisons.
How do you gauge success?
As we were designing the project, we consulted with sociologists at Berkeley and UC Irvine. It became clear that setting up research protocols to measure outcomes empirically and quantitatively would be impossible. There were simply too many variables. Thus, we have used qualitative evaluations from the participants themselves to determine the effectiveness of our teaching. In addition, because the participants must engage in actual peacemaking work and write up each conflict, we have a large set of qualitative data.
The inmates report to us that the violence in their prisons has been reduced. We have received unsolicited letters from prison officials confirming the reduction in violence. We have heard hundreds of stories of how our peacemakers and mediators have worked. From stopping incipient prison gang riots to dealing with the aftermath of rape, our mediators have stepped up.
As an unintended effect of the project, we have seen the personal transformation of many inmates. The power of becoming a peacemaker, not only allows them to live a life of service, but requires them to change in dramatic ways internally. We never expected to see the transformations that we have witnessed.
Examples of success – or failures?
Success or failure in a project like this is very subjective. As trainers and coaches, we do not get to witness the inmates working to resolve conflicts in their communities. We only get to see the write ups and hear the stories after the fact. As with any conflict, there are occasional failures. However, as we experience in the outside world, the successes are far more common.
I find it impossible to describe in words the successes I have heard about. For readers interested in hearing the women speak directly, go to the Prison of Peace website www.prisonofpeace.org and watch the videos on the Press & Media page.
Alcatraz camp site
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.
What’s it like working with women prisoners serving life sentences?
This is part two of my interview with Doug Noll detailing his work with Prison of Peace and his work with female murderers serving in California prisons.
Doug Noll and Laurel Kaufer have worked with such women teaching them conflict resolution skills and teaching them how to teach the same skills to other prisoners.
What was the first session like?
Laurel and I were both very experienced mediation trainers. Both of us had worked both nationally and internationally in a variety of contexts. However, neither one of us had ever worked in a maximum security prison. In fact, our first visit to Valley State Prison for Women was the first time either of us had been in a prison. Both of us had been civil trial lawyers before turning to mediation, with little experience in the criminal system.
Our first group of women, 17 in all, included a variety of ethnic, religious, socioeconomic, educational, and geographical backgrounds. Their ages ranged from late 20s to late 60s. They were all serving life sentences or very long-term sentences. Every one of them had killed another human being.
Being a second degree black belt in a northern Chinese kung fu martial arts style, I was not particularly fearful of my physical safety. I was mostly concerned about whether or not these women were willing to do the hard work it would take to transform into effective peacemakers and mediators. I was not sure it would work. The women were shut down, skeptical, and seemingly distant. They proved me to be very, very wrong. They turned out to be some of the most amazing human beings I have ever worked with.
What did you learn about your self?
I finally learned how to be deeply humble. These women, and all of the subsequent inmates we have trained, have done horrible things. But they have also had horrible things done to them. As a large, dominant, white, Anglo-Saxon, Protestant, lawyer male, I was evil incarnate to these women. I had to learn deep humility to gain their trust and respect. It was and has been one of the most transformative experiences of my life.
How is Prison of Peace set up to replicate itself?
We decided as we designed the curriculum that the project had to be built to become self-sustaining. Thus, we chose to work with lifers, because we knew they would be imprisoned for a long time. The model we have developed takes life inmates, trains them as peacemakers, then as mediators, and then as trainers. To become a trainer requires over 300 hours of classroom training, and countless hours of homework, reading, and clinical practice. Our trainers train the general population in peacemaking skills. Once we have established a training cadre in a prison, we turn the project over to them. We support them with advanced skills training, problem-solving, and support.
It generally takes two years to embed Prison of Peace into a prison. In terms of billable hours, if we were billing at $300 per hour, the cost would be in excess of $750,000 per prison. We pay for all the costs out of our own pockets, including gas, lodging, meals, photocopying, and the like.
Alcatraz Camp Site – Cell Block D.
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.
Recently I was asked to write an article for a law journal about Doug Noll and Prison of Peace detailing his and Laurel Kaufer’s work with female murderers serving in California prisons.My interview with Doug was quite enlightening.Over the next few weeks I will be sharing highlights from our interview.Here is part one.
What is Prison of Peace?
Prison of Peace is a pro bono project that teaches life inmates in California prisons to be peacemakers and mediators within their prison communities. It is currently operating in three California prisons, including the Central California Women’s Facility, Valley State Prison, and the California Institute for Women. In addition, the project is expanding in 2014 into Los Angeles County juvenile facilities.
How did it start?
The project started with a letter from an inmate at the old Valley State Prison for Women. She wrote 50 letters to mediators across California asking for someone to teach her Networking Group basic mediation skills. The Networking Group comprised 100 women serving life sentences. They were interested in reducing the violence and conflict in their prison community. At the time, Valley State Prison for Women was regarded as the largest, most dangerous women’s prison in the world. The problem was that young women coming in from the gangs were disrupting daily lives. Most of the time, the guards could not prevent violence. The lifers realized that if they wanted peace, they had to create it themselves.
How did you get involved?
As far as we can tell, 49 of the requests were rejected. The 50th letter landed in Laurel Kaufer’s mail box. Laurel opened the curious-looking envelope from the state prison, read the letter, and without even leaving her mailbox, called me on her cell phone. She read the letter to me and asked me what I thought. Without hesitation, I said, “if this is for real, I think we should do it.”
Why did you say, yes?
There was something about this request that resonated deeply within me. At a practical level, I knew that there would be a lot of sacrifice as this was to be a purely pro bono project. But at a deeper level, I saw this as an opportunity to prove the true power of peacemaking. Ever since leaving the practice of law, I had faced ridicule, skepticism, and outright hostility towards the idea of a lawyer turned peacemaker. It was too soft. It was too Kumbayah.. It was completely impractical. It would never work. It might work for those other folks, but it will never work in my conflict. Objection after objection and scorn heaped upon scorn was my fate for deciding to turn away from litigation and become a peacemaker. Mind you, I am a secular human being. My concept of peacemaking is nothing like what religious people think peacemaking is about. I also recognize that the term peacemaking carries a lot of baggage. However, it truly does describe the work of transforming conflict. I thought that this project might be the perfect opportunity to demonstrate to all the naysayers that practical peacemaking was powerful. If I could teach murderers to be peacemakers, who could rationally deny the power of the process and the techniques?
Alcatraz
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 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.
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.
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.
If something happens in the mediation that irritates you, what will you do to get back on task?
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.
How will you help get things back on task if that happens? Things happen in mediation. Sometimes it is the realization that the person that caused the dispute is sitting across the table from you. You have just been confronted with the fact that you still have to deal with them whether now or in court. You need to develop a game plan for getting back on task and settling the dispute. It might be a private caucus or just a break. It might be a continuance of the mediation itself to another day. Communicating your needs to the mediator will help get things back on task and help settle the dispute.
Will you risk your future financial interests to avoid uncomfortable discussions now? This is the question you must keep in mind. Mediation can be quite uncomfortable. Mediation is conflict at its best. But settlements do happen and are worth the discomfort.
Will you accept a satisfactory offer to settle, even if you are very resentful about how you’ve been treated? At some point you must make the decision that you want to settle the dispute and move on to better days. It is important to make this decision before you come to the mediation. If you do not want to settle, and want to continue expending the emotional energy, not counting the expense of litigation, then mediation will not be effective.
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.
