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:
Know and articulate several ways that good leadership can minimize conflict.
Understand how the acronym E.A.R.can be used as a tool for resolving conflicts (Express, Address, Resolve).
Use several communications skills important for resolving conflicts
Know when, as a leader, the resolution of a conflict is beyond your expertise and how to seek help in resolving the conflict.
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.
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.
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 #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.
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.
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.
Task #12: What important understanding did you think you had when you originally got involved together?
What important understanding did you think you had when you originally got involved together? 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.
What important understanding did you think you had when you originally got involved together? This is the understanding from at least from your own point of view. These can include working conditions, responsibilities, which one was to make the final decisions, time, money, rights, duties and working conditions.
You developed or already had a relationship with the other party. At some point it was a good relationship. Why did you think it was a good relationship?
This is obviously important if the subject matter of the dispute is commercial. In other words it is based on a contract, lease, employment, insurance, agreement to buy, etc. It is still important even if the dispute is not based upon contract. For example it could be based on a family relationship. It even goes beyond that to personal injury and intellectual property disputes. For example, when you enter a grocery store, it is usually your understanding that you will not slip on a banana peal. Likewise, when you create something, you expect to receive credit for the creation.
Therefore, it is always important to understand your expectations at the beginning. Without that understanding, it will be difficult to create a solution that is satisfying.
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 #11: What’s wrong with the other side’s case?
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.
These tasks and the discussion with the mediator are confidential. They are confidential under both Attorney Client privilege and under mediation confidential provisions in court rules, statutes, and standards.
Task #11: What’s wrong with the other side’s case?
Now is your attorney’s opportunity to turn the introspection of your own case on its ear. You need to list everything that is wrong with your opponent’s case. You need to review this confidentially with the mediator.
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 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.
These tasks and the discussion with the mediator are confidential. They are confidential under both Attorney Client privilege and under mediation confidential provisions in court rules, statutes, and standards.
Task #10: What are the weaknesses in your case?
In this exercise, your attorney will need to take the lead in preparing your answer. It is important that you understand its impact on your position.
You need to articulate all of the weaknesses in your case. These can be issues of law. I have seen issues that involve the statute of limitations. Other times, I have seen where the original complaint did not name the correct defendants. These may be extreme examples, but no case is perfect.
There can be issues of evidence. It can be simple lack of evidence to support your claims. It can be the credibility of the evidence. Is it admissible or will its admissibility be challenged. Seldom is there enough credible evidence to support each element of the claim. Likewise defenses have their weaknesses as well.
There can be issues of witnesses. Will they persuade a jury or will their testimony be discounted by the jury? Are they available? Will they ‘show well’ to the jury? Can they be easily impeached?
Is a jury in this jurisdiction favorable to your position or that of your opponents? And the list goes on.
This can all be summed up by asking what your opponent will say about your 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.
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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.
