In my last article, “Asking Questions Part I“, I illustrated how asking the right questions can help parties evaluate the strength or weakness of their respective cases and, in so doing, decide to settle. I used an illustration with unrepresented parties in small claims court. Asking questions can also be valuable when mediating with parties represented by attorneys, especially when the attorneys are there to help their clients reach a settlement of the case. What follows is not a particular case study; rather, it is a strategy I have used many times in the last 26 years.
I regularly am asked, typically by attorneys, to mediate a contract case involving a significant amount of money, but not so significant that it would be worthy of a long, extended trial. These cases are prone to reach impasse, because, for the parties, the case is as much about principles (e.g., honesty, keeping one’s word, loyalty, etc.), as it is about the monetary value in dispute. I have developed a strategy that usually works to break an impending impasse. It again involves asking questions. It also involves cooperation by the attorneys.
Typically, a contract dispute can be broken down into several parts (either because it is presented as such or because a clever mediator can find ways to view it that way). Each part of the dispute can be assigned a value and considered separately. This has the value of looking at the details and sidestepping the dispute about principles. I ask the parties questions like: “What is the value of the lumber that was not delivered, as distinct from the sheet metal (which was also not delivered)?” […]