Ken Strongman, Esq. – Mediator

Tag: kenneth strongman

  • Is a Retired Judge a Better Mediator?

    retired judge
    Does a retired judge make a better mediator?

    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.

    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.

  • Contra Costa Superior Court Volunteer Reception

    Ken Strongman Volunteer appreciation 2013
    superior court volunteer

     

    The Contra Costa Superior Court held a reception to thank the hundreds of volunteers from the legal and professional community who contributed their time and talent to support the court.  I was one of the volunteers so honored.

    The Presiding Judge, the Honorable Barry Goode said, “There have been so many setbacks as our budget has been cut over the past five years, we simply could not function as well as we do without you.  Your efforts as mediators, arbitrators, settlement mentors, temporary judges, discovery facilitators, docents, clerks and interns, CASA and clinic Volunteers have made all the difference.  We thank you on behalf of the parties with cases before the court, and the public whose access to their justice system you have supported.”

    I’m proud to be associated with this large group who has given of their time and talents to improve access to justice.

    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.

  • Don’t be afraid of anger – angry people can’t lie.

    NYLT_Ken Strongman 06Don’t be afraid of anger – angry people can’t lie.

    The first step to resolve any conflict is to defuse anger.  But do not be afraid of anger.  An angry person can’t lie because anger is a primitive emotional response.  To lie, you must control your emotions and turn on your intellect.  So when someone is angry, whatever they are telling you contains some truth.  Beware that this does not stop good actors.  A good actor merely appears to be angry as they try to control the situation

    There are several reasons for anger:

    To vent. An angry person needs to let off steam and release the anger that may have been brewing for a long time.  To resolve the conflict you need to allow this to happen, but try to control it by reframing their issues. 

    To get the listener’s attention. An angry person wants to know that you are paying attention.  Use good listening skills to demonstrate that you are paying attention.

    To be heard. An angry person wants someone to listen to their point of view.  To resolve the conflict, you need to acknowledge the feelings you hear so that the speaker knows you appreciate how angry they are.

    To be understood. An angry person wants someone to appreciate how they feel.  Therefore try to empathize with their experience so that they feel you understand the situation, and acknowledge their ‘right’ to feel the way they do.  This does not mean that you should agree with their justification.  You do want to remain neutral in the conflict and not pick sides.

    **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. 

     

    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 #21: If something happens in the mediation that irritates you, what will you do to get back on task?

    Ken Strongman Mediation Tasks 06If 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.

    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.

  • How long should mediation take?

    FAQ_Mediation Golden Gate long
    How Long?

    How long should mediation take?

    We have grown used to life happening instantaneously. What we forget is that despite all the fast and furious technology, we remain human beings. We may be more sophisticated overall, but are otherwise no different than we were thousands of years ago. Our thought processes and decision-making ability have not evolved along with technology and to expect otherwise is to set ourselves up for disappointment, if not failure.

    Too many people approach mediation as a finite process, allowing only two or three hours, with the expectation that the dispute will either be resolved or it won’t, but the process will be complete. Sometimes they are correct, but in most cases, this is a mistake that dooms the process to failure. Regardless of the dispute involved, mediation is a personal process that needs to occur in human time. Without exception, at least one of the participants in the mediation will have some very personal issues to confront and assess in making the decisions asked of them. Because the point of mediation is “resolution” rather than merely “settlement”, it is unfair and often impossible to rush this.

    It is always best to have an open-ended amount of time available when scheduling mediation, in order to allow for the possibility of prolonged discussions. If you are unable, for whatever reason, to give the process this time in a single session, let me, as your mediator, know at the outset, and allow for the possibility of further discussions in the future.

    Allowing people the ability to process information in their own time, whether at the mediation session or subsequent sessions, will lead to greater contentment in resolution and a greater likelihood of finality to the dispute involved.

    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.

  • The ingredients of any conflict.

    Conflict is EverywhereThe ingredients of any conflict

    All conflicts have similar ingredients.  They may vary in amount but most are present in some way.  

    Needs – Needs are physical requirements essential to our well-being. Conflicts arise when we ignore others’ needs, our own needs or the group’s needs. It is important to not to confuse needs with desires.  These are the things we would like to have but are not essential.

    Perceptions – All humans interpret reality differently. They perceive differences in the severity, causes and consequences of problems. Misperceptions or differing perceptions may come from: self-perceptions, others’ perceptions, differing perceptions of situations and perceptions of threat.  How something is framed will affect its perception.  So in conflict resolution, re-framing is an important task to get to a solution.

    Power – How people define and use power is an important influence on the number and types of conflicts that occur. This also influences how conflict is managed. Conflicts can arise when people try to make others change their actions or to gain an unfair advantage.  This is a powerful human motivation.  Everyone wants to establish or reestablish the perception of control.

    Values – Values are beliefs or principles we consider to be very important. Serious conflicts arise when people hold incompatible values or when values are not clear. Conflicts also arise when one party refuses to accept the fact that the other party holds something as a value rather than a preference.  To resolve the conflict, clarify each party’s values. 

    Feelings and emotions – Many people let their feelings and emotions become a major influence over how they deal with conflict. Conflicts can also occur because people ignore their own or others’ feelings and emotions. Other conflicts occur when feelings and emotions differ over a particular issue.

    For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman. Here.

    **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. 

     

    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.

    © 2021 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

  • Task #20: We all have buttons. When pushed they have irritated you. If not, we would not be here at mediation. Therefore, what could they say or do in the mediation that would really tick you off all over again?

    Ken Strongman Mediation Tasks buttons
    What are your buttons?

    Task #20: We all have buttons.

    We all have buttons. When pushed they have irritated you. If not, we would not be here at mediation. Therefore, what could they say or do in the mediation that would really tick you off all over again?

    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.

    We all have buttons that might be pushed by the opposition.  They can be anything.  Once it was the attorneys that were the problem.  They did not like each other nor respect each other.  They got into a shouting match yelling four letter words at each other. Their clients didn’t know what to do.  Naturally, we went quickly in to private caucus and tempers went down.

    You need to understand what your personal buttons are and you need to communicate them to the mediator.  With that knowledge the mediator can skillfully avoid the potential of those buttons being pushed by the other party.

    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.

  • What am I actually getting for my money when I hire a mediator?

    Bonita Cove from Point Bonita Lighthouse Trail

    When you hire me as your mediator, you are buying the opportunity, through a neutral third party, to evaluate with someone who is an objective “sounding board,” your real needs (personal, economic, spiritual, etc.) and to evaluate which dispute resolution process will best help you meet those needs.

    *    You are buying my opinions and impressions of “your first juror,” as to existing information/evidence and that which is non-existent.

    *    You are buying an opportunity to become more informed of the risks and benefits involved in resolving or litigating a dispute.

    *    You are buying an opportunity to address and resolve differences of opinion or expectation between you and your client, you and other professionals or between several clients (business partners, etc.).

    *    In addition, you are buying many things that can’t be quantified, unique to your particular dispute, which come with the intervention of an experienced neutral.

    I am usually hired as a mediator because of my perceived ability to resolve a dispute.

    Mediators don’t settle cases, parties do! What you are really buying are choices.  My value as a mediator is my expertise in guiding all of the parties involved in a dispute to a point where there are new, real and often difficult choices created. It is up to you to evaluate those choices, in light of the insights you gain through the mediation process, and choose that one which will end the dispute in the manner that brings you the most complete resolution. In getting to that point, whether that choice is to accept a proposed settlement or continue on the path to litigation, you have gotten “your money’s worth”.

    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.

  • What really motivates humans?

    Motivates?

    What really motivates humans?

    Before we get can resolve conflicts, we need to understand what is really going on.   My colleague, James Cawood teaches and consults in major hostage situations.  He teaches that there are only two basic human motivations:  

    •        Seek Stimulation

    •        Establish (or Re-establish) Perception of Control

    It is somewhat hard to comprehend that there are only two reasons we humans act.  But viewing many of the conflicts that I have helped resolved through mediation, it does become clearer. 

    We humans are always seeking stimulation.  We are not a passive group at all.  Conflicts can be generated through or by this motivation to seek stimulation, it is slightly less important that the second motivation.

    We all want control over our own lives or at the very least a perception of control.  Historically, this is always the cause of wars.  One group wants to control another group.  We have not completely matured from the past.  Today we at least want the perception of control. 

    Team leaders have been given by society real control of the team.  To head off potential conflicts with team members, the team leader must be confident in their position and to help everyone else develop their perception that they, too, are in control of the situation. 

    **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. 

     

    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 #19: What evidence can you bring to the mediation that will be credible to them and will help them see your point of view?

    Ken Strongman Mediation Tasks 09
    credible evidence

    Task #19: Credible evidence?

    What evidence can you bring to the mediation that will be credible to them and will help them see your point of view? 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.

    It is useful to bring evidence to the mediation that will be credible to your opposition and will help them see your point of view.   This is at the very least your smoking gun.  But though it might be a smoking gun to you, it is important that they see it as such.  If this evidence would be admissible in court, then it would be best to send it to them way before the mediation.  By so doing, you might eliminate the need for the mediation itself.

    It is not necessary, despite the objections of the lawyers, that the evidence be admissible in court.  The beauty of mediation is that the parties can look at all of the evidence and then reach a decision.  The mediator and attorneys would help evaluate the evidence and its admissibility to determine possible settlement.

    They will also be bringing their own evidence to help you see their point of view, too.

    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