Thursday, February 16, 2012
Mediation: Why Asking the Right Questions Matters
Try as they may, clients and their respective attorneys sometimes fail to come up with a negotiated agreement that they can all live with and arrive at a no deal situation also known as an empasse. Before taking on expensive litigation, some parties try to make a last ditch effort to resolve their problems through mediation, in which a neutral mediator helps the parties resolve their conflict. Some parties also acquire an attorney to serve as a legal advisor during the process who will “watch their backs”.
In an article entitled, “Navigating the Mediation Process”, edited by Harvard’s PON Staff, it was pointed out that the mediation process involves two stages:
Stage One: The Joint Session whereby the parties are typically brought together to a) educate the Mediator about the reason for the “dispute”, b) to uncover different perspectives on the facts and c) to determine what it would take for the parties to arrive at a satisfactory resolution.
Stage Two: If emotions run high, the Mediator may proceed to separating the parties in an effort to continue settlement efforts. In separate sessions, called Caucuses, the Mediator meets with each party separately, assuring the parties that any information shared in the caucus would not be divulged unless given permission to do so.
In both Stages, the Mediator should be aware of the importance of asking the right questions. Since the Mediator is privy to the perspectives of both sides of the mediation, it can be a real challenge to remain neutral, especially if the Mediator sees a solution that is heavily weighted toward one side. The Mediator’s job is to remain neutral at all costs and refrain from offering advice to one or both parties. Doing so can backfire, especially if a suggestion made to a party is perceived as leaning to the advantage of the opposing party and will then jeopardize the Mediator's position of neutrality. One way to avoid a biased position is to ask questions that get the parties to “think about” certain options. Because the mediation's core interests are all about a successful negotiation, a good Mediator will ask the parties specific questions to flush out underlying issues, their reasons for positional thinking, and possible options leading to a resolution. Phrases like, “Have you thought about….” or “What do you think would be the consequences/benefits of that option to you or the other party?” Questions, if formulated correctly and wisely used by the Mediator to help parties create value for themselves and the other side, can be a path for the parties to come up with a resolution themselves. In essence, the Mediator facilitates the process of creating and claiming value, brought about by the parties themselves. This usually leads to better resolutions and greater by-in by both of the parties.
Irene P. Zucker, TCAM
IN Mediation Services
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