Ken Strongman, Esq. – Mediator

Tag: mediation

  • A working definition of a Conflict.

    NYLT_Ken_Strongman 02 A working definition of a Conflict.

    What is a working definition of a Conflict. Conflicts can occur when people disagree with each other and are unable to find a reasonable compromise.  The roots of these disagreements can arise from many sources including differences in personality, values and perceptions.  They also can and often do arise when there is a difference in the goals and visions of the group.

    Most conflicts that require mediation occur when there is a difference in the perceived outcome.   Historical arguments have occurred over whether bananas are fruits or vegetables; or, whether the order was for frying chickens or broiling chickens.  Parts are not parts for most people.  Both of these issues had to be resolved by the United States Supreme Court.

    In NYLT we teach that as leaders they will need to handle the differences that arise between members of the team they are leading.  Conflicts may be minor or they may fester into something that can damage team spirit and ability to work together effectively.

    **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 #17: How do you evaluate the betrayal, bad faith or loss of confidence?

    Ken Strongman Mediation Tasks 07
    betrayal, bad faith or loss of confidence

    Task #17: How do you evaluate 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.

    Previously, you were asked to pin point the exact time and place for your sense of betrayal, bad faith or loss of confidence in the agreement and other party.  That is important because there is usually a time and place when you realize the agreement that you had developed with the other party is not work according to your hopes and dreams.

    Now you need to determine how you evaluated the betrayal, bad faith or loss of confidence.  It is often the same evaluation process you used to develop the trust and good will of the original agreement.  Knowing how you evaluated both the original good will and now the betrayal will lead to possible solutions to the dispute.  Was it because they stopped looking you in the eye?  Was it a failure to return a phone call in a timely matter?  Was it a failure to respect you and your time, expertise or property?  With this knowledge you can then determine possible solutions to the dispute.

    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.

  • If I, as mediator, give my opinion in a dispute, doesn’t that mean I am biased?

    FAQ_Mediation Mendocino 03
    My Opinion – Bias?

     

    If I, as mediator, give my opinion in a dispute, doesn’t that mean I am biased?

    Absolutely not!  I as mediator form opinions on many issues for many reasons.

    One of the primary things I do as mediator is to help you to evaluate the pros and cons of your position in a dispute and provide you with the information you need in order to make an educated decision about resolution. My opinion is critical to this process and will likely be based on the totality of the information from both sides, not merely that of one party. Although because of confidentiality, I may not be able to disclose the information to you, having an opinion from an unbiased source, based on such information may be very helpful to you in making choices.

    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.

  • Teaching youth how to resolve conflicts.

    Communication skills to resolve conflicts

    Teaching youth how to resolve conflicts.

    I’m privileged to be an adult staff member for a National Youth Leadership Training (NYLT) course.  It is a very satisfying experience and a lot of fun.  One key topic on the course is how to resolve conflicts as a leader.  This blog is adapted from this course.

    Leading the youth through this necessary topic allows me to bring my professional expertise in settling disputes to the more practical issues of conflict resolution.   The course can be applied to any situation as a young person or adult.

    The learning objectives of the conflict resolution course are:

    1. Know and articulate several ways that good leadership can minimize conflict.
    2. Understand how the acronym E.A.R.  can be used as a tool for resolving conflicts (Express, Address, Resolve).
    3. Use several communications skills important for resolving conflicts
    4. Know when, as a leader, the resolution of a conflict is beyond your expertise and how to seek help in resolving the conflict.

    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.

  • Arbitration, then Mediation, a way to blend them both.

    Arbitration-Mediation
    Blend mediation and arbitration

     Arbitration, then Mediation, a way to blend them both.

    Many view mediation as a one-way street.  You conduct a mediation to settle a law suite.   Nothing could be further from the truth.  There are many ways to blend mediation with the legal system or blending it with other alternative dispute resolution processes to reduce or resolve conflict. 

    One way is to blend arbitration and mediation so that the participants have the benefits of both arbitration and mediation.

    The process begins with binding arbitration before a single arbitrator.  At the conclusion of the arbitration session, the arbitrator immediately issues a binding decision and proceeds to seal it so neither the parties nor council know the result. 

    Immediately following the arbitration, mediation is conducted by a different neutral. This mediator, like the parties, also does not know the content of the sealed arbitration decision.   If the mediation ends in a settlement, the arbitration decision is destroyed and the parties never learn how it turned out. However, if the mediation does not result in a settlement, the arbitration award is unsealed and disclosed, at which time it becomes final and binding. 

    This process of sealing the decision and potentially destroying the arbitration decision, if a settlement is reached, is negotiated between the parties and the arbitrator.  It is accomplished in the arbitration service agreement.  The length of time allowed for mediation must also be explicitly outlined in the agreement to arbitrate.

    There are significant advantages to this arbitration-mediation model.  First, it brings prompt finality to the litigation process, either though a binding arbitration award, or else through a mediated settlement. 

    The procedure also diminishes the overall cost of litigation.  The actual cost of presenting a case in arbitration is significantly lower that a one to two week trial, stipulations between the parties can further streamline and simplify the issues.  Medical expert opinion can be presented through medical reports, declarations and records. 

    There are other benefits beyond cost savings.  The arbitration-mediation process encourages a more cooperative, less adversarial framework for resolving cases.  The protocol allows parties and key claims personnel, such as the adjuster in charge of the file, to see how key witnesses present themselves at the binding arbitration prior to engaging in mediated settlement discussions.  It also solves the case at a much earlier date that the potential four-year wait until trial. 

    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.

  • Task #16: At what point did you first have any realization of betrayal, bad faith, or loss of confidence?

    Ken Strongman Mediation tasks 05Task #16: At what point did you first have any realization of 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.

    In the previous task, you spent time determining the trust and goodwill that supported your original agreements.   Now we need to look at the point when you had your first realization of betrayal, bad faith, or loss of confidence.  This is generally one specific point of time and place.   It might have been building in the back of your mind for some time, but there is usually a point that you change your mind about the relationship with the other party.  It can be as simple as one phone call not returned, or a dirty look.  It is often after miss communication between the parties.

    Knowing when this missed communication occurred will be helpful to you in the mediation.  In one of my mediations, it was obviously a missed communication between the parties.  Both parties knew what the problem was and when it occurred.  With that knowledge they were able to correct the problem, restore trust and goodwill between themselves and quickly settle the dispute.

    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.

  • I want to resolve the dispute, but the other party’s demands are unreasonable. What should I do?

    FAQ_Mediation Mendocino 02

    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.

    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.

  • Evaluate the trust and goodwill that supported your original agreements.

    goodwill
    Goodwill

    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.

    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.

  • 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?

    court
    Going to court.

    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.

    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.

  • With the right tools we can handle more conflict.

    handle
    Tools to handle conflict

    Mediation is conflict at its best.   All of the tools, I, as a mediator brings to the mediation help manage the conflict to a great resolution.

    Management expert Margaret Heffernan postulated five counterintuitive guidelines learned in her years running businesses and organizations in her TEDGlobal 2012 presentation.

    Her insight has great implications for successful mediations.  I have always contended that mediation is conflict at it best and her insight bares this out.   Heffernan has developed five guidelines for productive disagreement.

    1. Appoint a devil’s advocate
    2. Find allies
    3. Listen for what is NOT being said
    4. Imagine you cannot do what you all want to do
    5. After a decision is made, declare a cooling off period

    These are counter intuitive guidelines because it is assumed in mediation as well as life that we need to avoid conflict; smooth it over if we have to and compromise if all else fails.   Our job is not to avoid, smooth over or compromise, it is to find a better way.

    Explains Heffernan: “All of these guidelines are neutral and designed to aid exploration rather than judgment. There’s never any reason not to try these — who doesn’t want to make better decisions?”

    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.