Ken Strongman, Esq. – Mediator

Tag: mediation

  • 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

  • Who should attend the mediation?

    Golden Gate Bridge, Marin Headlands.
    Who should attend the mediation?

     Who Should Attend the Mediation?

     All parties involved in the interactions that gave rise to the dispute should be involved in the mediation. This helps me, as mediator; crystallize with the parties exactly what happened. A party may also be more candid with me when they know they may be faced with others who know exactly what happened.

    It is essential that all insurance carriers are represented at the mediation and that they have full authority to settle the dispute.

    In addition, for parties to a dispute, letting go of emotion is often critical to the ability to resolve a dispute. An acknowledgement of damage or expression of remorse from an opposing party or a participant in the interactions that gave rise to the dispute (without any admission of liability, of course) can make the difference. This can’t usually be done by anyone but those personally involved in the dispute.

    Bringing your witnesses (party, corporate or independent) to a mediation (even if they spend all their time in a separate room), can accomplish some important things, particularly when the facts are in dispute or emotions run high. Meeting and speaking with witnesses allows a mediator to provide you with an opinion as to their credibility and the likelihood of their being persuasive with an arbitrator, judge or jury.

    Every situation is different and you should talk to me, your mediator to see what would be appropriate for your mediation.

    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 is Conflict?

    NYLT_Ken_Strongman 03
    Conflict

    What is Conflict?

    Conflict occurs when people disagree and seem unable to find a solution or a reasonable compromise.  The roots of these disagreements can arise from many sources including differences in personality, values, and perceptions.  As a team leader, you will occasionally need to handle the differences that arise between members of your team. Conflicts may be minor or they may fester into something that can damage team spirit and the ability of the group to work together effectively.

    Often it is the lack of team vision of what should happen in a given situation that creates the conflict.  To minimize conflict, the team vision needs to be agreed to before the team can achieve its goals.  If there is a difference, then the team members will never be on the same page.

    In team development the Storming stage is ripe for conflict.  That is where this stage gets its name.  Therefore as a leader, you should expect conflict and to be prepared for it while the team moves through this stage of team development.  If the team doesn’t start to resolve their conflicts in this stage, the team will not get to the performing stage and achieve the team vision.

    Minor conflicts, if not resolved, can grow to bigger ones.  At the same time, they will damage team spirit.  Therefore it is important to watch out for minor conflicts and create mechanisms to resolve them.

    **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. 

     NYLT_Ken_Strongman 03

    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 #18: Do you believe that they might owe you something specifically to restore or compensate for the betrayal, bad faith, or loss of confidence?

    Ken Strongman Mediation tasks 02
    specifically owed?

    Task #18: Do you believe that they might owe you something specifically?

    Do you believe that they might owe you something specifically to restore or compensate for the betrayal, bad faith, or loss of confidence? 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.

    While many mediations come down to a money dance between the disputants, there are other things could be said or happen that would go a long way to resolving the dispute.   This is one of the great advantages to using mediation to resolve a dispute.  In the Courts, it is only money that can be used to make the parties whole.

    Often the one thing that could be done to restore or compensate for the betrayal and bad faith is an apology by one of the parties.  I have spent many hours in mediations working on apologies by one of the parties.  We will work on the wording to make sure it is sincere enough and can be said with enough feeling that the receivers of the apology believe and can accept the apology.  Some times both sides have apologized to each other.

    Though hours are spent on the apology, few are repeated outside of the mediation.  Occasionally, they might be embedding into the final settlement agreement.  Even then there might be a confidentiality clause included in that agreement.

    It is not only apologies that are done within mediation.  Recently, one party just wanted to speak their mind and just wanted the other party to listen.   In this mediation, we again spent time working on what would be said, how it would be said, the expected responses of the other party.  We even set a time limit on the speaking and any potential response.  Both sides did not want anything said that would inflame the situation.  It was quite successful.  No one used their entire time allotment and we proceeded to a complete settlement of the dispute.

    As always, sometimes it is just a fixed amount of money that will restore some good faith and remove the feeling of betrayal.  Though I have found that if this is coupled with an apology, the amount of money required is greatly reduced.

    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.

  • Why did the mediator stop the mediation without resolving the dispute?

    Stinson Beach, Dip Sea Trail, CP XC Team
    Stop the mediation?

     Why did the mediator stop the mediation without resolving the dispute?

    As valuable as it is for me, as mediator, to know how to move a dispute to resolution, it is equally important, if not more so, for me to recognize when a dispute isn’t prepared for resolution and how to move it in the right direction. With the exception of reaching resolution, this is one of the greatest benefits of mediation.

    Some of the most successful mediations are those in which the parties never even get to a discussion of money or resolution in the initial mediation session, but evaluate where the case is, where it needs to be and who needs to be involved, in order to achieve the greatest productivity in mediation. At this initial session, the parties through my guidance develop a plan with specific “homework” to be completed before reconvening at a different date.

    This “homework” may mean spending some time and money on investigation or making a more cooperative effort between the parties in sharing existing information. Regardless, once this is done, the dispute is usually postured for a realistic and informed evaluation. Often, once the “homework” is complete, further mediation becomes unnecessary and these matters are able to resolve through the efforts the parties alone.

    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.