A Judge may recommend that the parties consider mediation or, more commonly, one party may simply propose, through their legal representatives to the other party and their legal representative, that the dispute be mediated. A proposal to mediate should not be seen as a weakness but merely as a willingness to explore the possibility of a resolution outside the procedural confines of litigation.
Many contracts contain mediation clauses.The purpose of the mediation clause is to require a good faith attempt at resolving any contractual disputes before litigation is initiated.If there is no mediation clause, the parties can still attempt to resolve their contractual dispute before commencing litigation.
If no contract exists or it is as dispute arising out of a tort such as a personal injury, there is no reason not to suggest 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.
The better the information you have, the greater your chances of finding a workable solution.Listen carefully to what others are saying, not judging until you hear everyone’s story.Be aware of tone of voice, body language, and other clues. Understand what each person is expressing – what he wants and what he is willing to do to get there.Then clarify that the solution lies with all parties.
Listen carefully to what others are saying without judgment until you have everyone’s side of the story. Clarify what you have heard and then reframe it back to each party.Remember the solution lays with both parties not you.
**For the last decade I’ve been involved with leadership development of tomorrow’s leaders. Using my expertise, I am training the youth leaders in conflict resolution. This blog is adapted from my training materials.
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.
A Judge may recommend that the parties consider mediation or, more commonly, one party may simply propose, through their legal representatives to the other party and their legal representative, that the dispute be mediated. A proposal to mediate should not be seen as a weakness but merely as a willingness to explore the possibility of a resolution outside the procedural confines of litigation.
Many contracts contain mediation clauses.The purpose of the mediation clause is to require a good faith attempt at resolving any contractual disputes before litigation is initiated.If there is no mediation clause, the parties can still attempt to resolve their contractual dispute before commencing litigation.
If no contract exists or it is as dispute arising out of a tort such as a personal injury, there is no reason not to suggest 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.
The key issue is whether a party is ready to seriously attempt a negotiated settlement. If a party is insisting on pre-conditions to a mediation or sees the mediation as an opportunity to “send a message” rather than an opportunity to resolve, then there may be little prospect that a successful resolution can be reached. However, once the parties are engaged in the process, even an apparently unwilling or reluctant participant may see the benefit of reaching a resolution.
There are very few types of disputes that cannot be mediated. An often cited example is judicial review where the issue is whether a public body or authority exceeded its powers. However, that does not mean that all judicial reviews are incapable of being resolved through mediation.
If one party or the Court proposes mediation, the other party is entitled to refuse to mediate or at least to state that they are not ready to mediate yet. Once mediation is proposed, there is no obligation to agree. However, a party who refuses to mediate should not take this decision lightly as this may have cost implications.
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.
Negotiation is an important skill in mediation or any conflict resolution. It is needed for the parties to come to an agreement and thereby resolve a conflict.It doesn’t matter if the conflict developed at home or at work, or in any leadership situation.
Separate People from the Problem
When negotiating, the first step is to separate people from the problem. When negotiating, remember you’re dealing with people who have their own unique needs, emotions and perceptions.Some conflicts are based on differences in thinking and perceptions. These conflicts may exist mainly in peoples’ minds. It helps for each party to put themselves into the other’s shoes so they can understand each others point of view.
Differences in Perceptions
Identify and openly discuss differences in perceptions, being careful not to place blame. In addition, recognize and understand the other side’s emotions as well as your own.
Positions
People often confuse interests with positions. An interest may be reducing litter in roadside ditches. There are many possible ways of addressing this interest. One might be the position of mandatory recycling. Another position might be a deposit on bottles and cans. Still another could be organizing a clean-up day.
Focus on interests, not positions. Focusing on interests, rather than positions, makes it possible to come up with better agreements. Even when people stand on opposite positions, they usually have a few shared interests.
It takes time and effort to identify interests. Groups may not even be clear about their own interests. It helps to write down each group’s interests as they are discovered. It helps to ask why others take the positions or make the decisions they do. Partners will have multiple interests. Interests involving important human needs (such as security, economic well-being, a sense of belonging, recognition and control over one’s life) are difficult to negotiate.
Develop optional solutions.When you are developing optional solutions that meet the interests of all sides, try to meet as many of each side’s interests as possible. Start by inviting all sides to brainstorm ideas before reaching a decision.
**For the last decade I’ve been involved with leadership development of tomorrow’s leaders. Using my expertise, I am training the youth leaders in conflict resolution. This blog is adapted from my training materials.
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 can take place at any stage from before legal proceedings are issued up until trial and even after trial. Obviously, the earlier mediation takes place, the better chance of saving costs, avoiding publicity and possibly preserving future relations between the parties. However, at a later stage in proceedings mediation may have a better chance of success as the issues in dispute are more clearly defined, the parties are clearer on their strengths and weaknesses and the parties are more focused on the possible benefits and risks in terms of outcomes and costs.
I have successfully mediated disputes before legal proceeding were initiated.Often times these are business disputes or intellectual property/high technology disputes.The parties were quite aware that if they took their disputes to court, it would be years before there was a resolution.By that time, new technology innovations would make their dispute seem old and tired though legally valid.
I have also successfully mediated disputes after trial.In these cases, one party does have a judgment from a court, but both parties want to completely end the litigation and stop any appeals that might negate the judgment.
Naturally, mediation is appropriate and anytime.Often a party has to file the lawsuit to preserve their legal rights and to put on notice to the other parties that there really is a 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.
Being Aware of Others is an Important Step to Resolve Conflicts
Being aware of others is an important step to conflict resolution. Being aware of others helps you adjust the situation for a good outcome.It is important to be aware of their physical comfort and any other factors that might be affecting their emotions.
Consider taking a break if necessary
Consider taking a break if necessary. Now may not be the time to resolve the conflict. It does not have to be resolved instantaneously.A break of a couple of hours, days or in some cases weeks will create a better outcome.
Consider the location
Consider the location.It is often better to change to a more neutral location, or a least a location where both parties are equally uncomfortable.Meet away from the rest of the group if possible.I have found that the bigger the entourage the less likely a resolution can be found.Each party must save some face, and if the entourage is egging them on, they will not be able to save any face.We all remember our grade school yards when some one yelled ‘fight’ and the crowd quickly gathers around the combatants.Without the crowd, they might have agreed to disagree or at least one could have run away. But with the crowd, neither can stop the conflict from proceeding.
Be aware of their physical comfort
Be aware of their physical comfort.They may be tired.They may be hungry.They may be in physical pain.If any of these or similar condition occur, it will be difficult to resolved the conflict.
**For the last decade I’ve been involved with leadership development of tomorrow’s leaders. Using my expertise, I am training the youth leaders in conflict resolution. This blog is adapted from my training materials.
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.
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.
When are people most likely to do what you ask? (Especially if it is something they are not excited about!)
·When they trust you
·Experience shows you are a reliable leader and ally
·They understand you make decisions for the good of the group
·They know you care about them
How many of you have heard the first law of Real Estate: “Location, Location, Location”
Well the first law of team building is: Relationships, Relationships, Relationships.Relationships come from involvement with people.Listening is the most important skill in building those relationships and resolving any conflict, whether the conflict involves you as a participant or as a moderator. Unless you make a conscious effort to listen, you will miss vital facts and beliefs that could lead to a satisfactory resolution.
**For the last decade I’ve been involved with leadership development of tomorrow’s leaders. Using my expertise, I am training the youth leaders in conflict resolution. This blog is adapted from my training materials.
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.
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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.
