I want to resolve the dispute, but the other party’s demands are unreasonable. What should I do?
I want to resolve the dispute, but the other party’s demands are unreasonable. What should I do? Don’t let yourself get stuck refusing to make what you believe is a reasonable settlement offer or demand based on your opinion that the opposing party has made an unreasonable one! Instead, attempt to resolve disputes based on your reasonable evaluation. It is my job as mediator to assess, based on all the information presented, “the realm of the reasonable” in the context of potential resolution of each specific dispute and to bring the parties to that range.
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.
Task #15: How did you evaluate the trust and goodwill that supported your original agreements?
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.
Particularly in business disputes whether they are real estate, construction defect, general business or even intellectual property issues, there would have been a meeting of the minds before the deal was done. That is the essence of a contract. To get to meeting of the minds you would have had to evaluate the other party and their proposal. More specifically you have to decide if you can trust them to carry out their side of the bargain. With this task you need to go back and look at the trust and good will that was developed when you made the contract. What made you trust them in the first place? What did they say and or do to generate your trust in them?
This is important because you may want an ongoing relationship with them after this dispute is resolved. On the other hand you may not want to have a business relationship with them but out of necessity be forced to have a business relationship.
By evaluating the good will you will be able to see what was good in the original deal. It will also help you evaluate the eventual settlement agreement that you and they will be developing within the 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.
I’ve been in mediation and there was so much conflict that nothing got done. Wouldn’t I be better off just going to court?
This is an option, but you may not resolve your dispute. Mediation is not about coming to the table as friends to avoid conflict and confrontation, as many professionals would have you believe. It’s about resolving disputes. Inherent in the concept of “dispute” is conflict and without confrontation of that conflict head-on, there may be settlement, but there may be no true resolution.
In some disputes, settlement itself may be enough, but in most, in addition to the economic or performance related issues, there is an undercurrent of emotion, and both sides often perceive themselves as a “victim” in the dispute. Those complaining of a wrong see themselves as the aggrieved party. Those responding, because they often believe they are involved in the dispute needlessly, feel abused by the claimant and the dispute process, particularly when facing the burdens of litigation.
You may wish to avoid confrontation at the outset but may find, as the process continues, that you want to express yourself to other parties. Make sure you talk to me as your mediator to allow this flexibility. In a truly meaningful mediation, in addition to providing valuable information to you about the dispute, I will guide you safely through confrontation of the conflict to resolution.
Remember that Mediation is Conflict at its best.
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.
Starlings v Blueberries – Last Friday’s ABA Representation in Mediation Competition
Last Friday I participated in the ABA Representation in Mediation Competition. I was one of the judges of the competition. It was a two day event held at Berkeley Law in Boalt Hall at the University of California, Berkeley Campus.
As Alternative Dispute Resolution (ADR) becomes more integrated in courts and pre-trial procedure, it has been my experience that attorneys will have all of their cases referred to these processes. Therefore, it is important that attorneys adequately represent their clients in this ADR environment. The competition was designed to acquaint the law student with advocacy in mediation. The focus of this competition is on attorney representation of clients in mediation. Judging criteria are geared toward examining the effective combination and use of advocacy and collaborative problem-solving skills.
The judging criterion was designed to reward those participants who use an effective combination of advocacy skills and a problem-solving approach in the mediation. The problem solving approach is defined as one in which negotiators learn about each other’s interests and BATNA (Best Alternative To A Negotiated Agreement), brainstorm options, and select and shape a solution that meets their interests and, where appropriate, objective standards. Participants were not expected to sacrifice their client’s interests in order to be collaborative.
The round that I judged consisted of a 75-minute mediation session involving a community dispute involving starlings and blueberries. At the close of the mediation session, there was a 10-minute period during which each team analyzed its performance in private, followed by a 20-minute self-analysis period (10 minutes per team) for each team to evaluate its own performance in the presence of the judges, but outside the other team’s presence.
I was impressed by the attorney advocates willingness to let their client talk. They were confident in their own abilities to allow the opposition to ask direct questions of their clients. This was refreshing. One of my chief obstacles in mediation is the attorneys putting on shows for their clients benefit. They forget that their clients will usually have to deal with each other long after the dispute is resolved.
The 1st place team in this competition automatically advanced to the National Competition. There were teams from all over the west. Some came as far away as North Dakota. I will never know where any team came from. It would have been a disqualifying breach of the rules to know the law school identity of a team. Only if a team from the west wins the national competition will I have a hint that I was able to judge their abilities.
* * *
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.
Task #14: Looking at the previous two questions, where do you think THEIR perspective differs from your own.
Looking at the previous two questions below, where do you think THEIR perspective differs from your own.
Task #12: What important understanding did you think you had when you originally got involved together?
Task #13: In a dispute, 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.
Your exercise now is to answer the same questions that you have worked through but from their point of view. Maybe they think the honeymoon phase ended at a different time and way. What was their vision for the future of your relationship at the beginning of the agreement? How much money did they think they were going to make? Was this agreement a stepping stone to something else? Without trying to look at the problem from their point of view, will you both find a way forward?
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 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.
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.
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.
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.
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.
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 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.
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 is the Comprehensive Mediation Agreement?
In order to ensure all parties understand the status and implications involved, a comprehensive Mediation Agreement dealing with issues such as confidentiality, admissibility and privilege in relation to documentation and information exchanged must be agreed in advance. The Mediation Agreement will also deal with the costs of the mediation including the mediator’s fees and will establish how these costs are to be shared between the parties. An appropriately qualified mediator will usually provide a draft Meditation Agreement and it can be amended to suit the parties wishes before being signed by each of the parties and the mediator.
This is standard practice for all of my mediations.My mediation agreement includes the time and location of the mediation; any known apparent conflicts; the rules of confidentiality; due dates for briefing the dispute and payment of fees.Generally, the fee is split between the parties but this can be modified by the parties.
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.
