The most powerful set of tools in a mediator’s toolbox is the art of asking questions. Knowing how to use these tools, when to use them, and in what format they can be asked is critical, not only for breaking impasse, but also for helping parties better understand themselves, the nature of the conflict, and the perspective of the other party.
Before one heads into a mediation armed with a barrage of questions, however, it is wise to pause and consider what the experts say about how these powerful tools should be wielded.
SLOW DOWN WITH THE QUESTIONS
Billy Edy of the High Conflict Institute who is renowned for pioneering work in the field of high conflict family disputes is of the opinion that :-
“(t)he secret to managing high-conflict clients is to manage your own anxiety. One of the things that most professionals do when they’re anxious is to ask lots of questions. It gives the illusion of being in charge and of working on the problem, which distracts us from our fears or uncertainties regarding how to deal with a potentially difficult client. However, this often makes things worse and interferes with the most important first issue, which is forming a positive working relationship.”
By maintaining a calm and neutral stance, the mediator sets the tone for the process. This increases the chances that the parties will mirror this approach, adopting a more constructive and cooperative way of engaging with one another.
Bill Edy cautions that :
“(h)igh conflict clients usually have a history of broken relationships with family, friends and professionals. Thus, they feel extremely anxious when seeking the services of a new professional, or being required to use the services of a professional that they don’t want (such as a court evaluator or when required to use a workplace coach). Their anxiety is contagious so we often catch it and – without even realizing it – pepper them with questions. Our own anxiety is also contagious, so that high conflict clients often increase their resistance to us when peppered with questions, and the power struggle begins – and may never end.
FORMING A WORKING RELATIONSHIP
Generally, a Mediator comes into a dispute with little information as to
(i) who the parties are and
(ii) what their dispute is all about.
Failing to build rapport with the parties places the entire resolution process in jeopardy. It may even result in it being terminated, before it has even properly begun.
At the start of every mediation session, the mediator’s primary focus should be on building
(i) Rapport, and
(ii) Trust with the parties.
This is best achieved by giving them space to speak about what matters to them and by offering undivided attention. In doing this, each party gains confidence not only in the mediator, but also in the mediator’s ability:
(i) to remain attentive,
(ii) balanced, and
(iii) fair throughout the negotiation process.
Bill Edy recommends that Mediators endeavour : –
“(t)o establish a comfort zone for the client, so that he or she will feel committed to working with you as an ally, rather than as another person to be mistrusted or attacked. Ask getting-acquainted types of questions and demonstrate your interest in getting to know your client, more than getting to know the ‘case’ .”
MEDIATOR’S TOOL CHEST : THE OPEN-ENDED QUESTION
Edy suggests that –
“Only after you have ‘connected’ with your client(s) should you start asking questions relevant to the problem at hand. However, start with open-ended questions, rather than questions to get to the ‘core’ of the problem, as you see it. You may miss the core of their problem completely, if you focus on your perception of the details too soon. Open-ended questions could be ‘What are your concerns? ’ ‘What are your goals? ’ ‘What’s your picture of a positive outcome to this dispute? ’ ‘What do you think is really going on in this situation?’ ‘How do you think the other person(s) see this dispute? ‘ ‘What questions so you have for me?’ ”
When asking open-ended questions, it is essential that the mediator stays focused on what is being said. This focus must remain even when a party appears to be rambling about something of little relevance.
Time and again, these seemingly “innocuous ramblings” reveal important clues about:
(i) underlying concerns,
(ii) fears, and
(iii) even the kinds of solutions a party may consider in resolving the matter.
A mediator needs to stay alert at all times, even when clients appear to digress.
It is good practice for the mediator to briefly summarise what has been said at the end of each person’s communication. This models the process of listen–understand–reflect, which is critical to successful negotiation.
Once parties have shared their general perspectives, the mediator should guide them toward a clearer understanding of the problems and potential solutions. This is achieved through the use of focused questions.
The parties must participate as fully as possible in putting forward and considering options. When mediators take on this workload themselves, they risk undermining the process if the parties are not receptive to the mediator’s “solutions.”
As Bill Edy states, “It has to be their solution, not yours”
MEDIATOR’S TOOL CHEST : “WHAT IS YOUR PROPOSAL ?”
The stage of considering proposals should only begin once the parties have had a fair chance to set out their perspectives on the dispute. If a party tries to start the process by immediately making proposals, the mediator should gently remind them that proposals can only be properly evaluated once all concerns and viewpoints have been aired. As soon as everyone is ready to move forward, that party will have the opportunity to present their proposal.
Edy notes that :
“If they start out making proposals earlier in the process, you can gently say, “That’s great that you already have a proposal. Write that down and we’ll get to it very soon when we focus on making proposals. But first we need to hear each person’s concerns and goal.”
In cases involving high-conflict personalities, an effective way to shift parties into a creative problem-solving mindset is to ask them: “What is your proposal?”
MEDIATOR’S TOOL CHEST : QUESTIONS THE PARTIES DID NOT RAISE
Mediators should not hesitate to ask questions about the finer details of a proposed agreement. They should do this eveni if it risks putting the agreement in jeopardy. If the parties cannot work through these details during mediation, it is unlikely they will manage to do so later.
“If you have worked on their expressed concerns first, then it can be totally appropriate for you to raise other potential issues later on that they may need to address, or to think about for the future. “Have you thought about such-and-such, which often comes up when people are dealing with your type of situation?” Or “You may want to consult with an expert on ABC before you finalize these decisions. Do you know of someone or would you like a referral?” As long as you leave the decision-making up to them, you can raise almost any issue. The Parties are often very appreciative, because they are absorbed in the present dispute and unlikely to see the larger picture that you may see.”
MEDIATOR’S TOOL CHEST : QUESTIONS TO ASK
To avoid any perception of bias, mediators should use balanced questioning, such as: “What are your thoughts concerning the proposal?” Where parties express misgivings about a proposal, a constructive follow-up is: “So what do you propose or counter-propose?”
It is vital that the mediator does not become invested in any particular solution. If that solution fails, the parties may place the blame on the mediator. Equally important is to avoid “How do you feel?” questions. A mediator is not in the role of therapist, and many clients find “feeling” questions uncomfortable. Instead, a more suitable approach is to ask: “What are your thoughts concerning the proposal?”
Finally, avoid criticism of the parties. Often, repeated criticism has already driven them into entrenched positions. A mediator who criticises risks cornering a party further, leaving “fight at all costs” as their only perceived option.
MEDIATOR’S TOOL CHEST : TALK LESS AND LISTEN MORE
Mediators facilitate negotiation; they do not lead it.
Plain and simple :-
“Professional usually do better if they talk less and listen more. By avoiding asking too many questions too soon, and adopting a more patient, step-by-step approach, you can often help high-conflict people reach an agreement help them feel good about themselves and put less stress on yourself in the process.” (Edy 2011)