GROUP FACILITATION AND MEDIATION – Asking Questions – Part Two

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)?”  Or “You say you weren’t paid for the construction project you completed.  Can you give me the separate values of the materials provided and the labor you put into the project?”  If the parties can agree that the case can be broken down in this manner, then they can potentially agree on the value of some or all of the parts.

Once the case has been partitioned in this way, each piece can be mediated separately, and each decision about settlement becomes less daunting.  Each partial agreement decreases the overall monetary value in dispute.  It may be that the entire case can be settled this way (defeating the enemy –impasse – in detail, to use a military analogy).  Usually, however, one or two parts of the case remain at impasse.  (“Yeah, we agreed that the value of the materials is $10,000, but wants me to pay way too much for his labor.”)

Then, typically in a separate caucus with each side, I start asking questions again.  My usual question goes something like this: “When we started this mediation you were willing to go to court for $100,000 (the entire value of the suit).  Over the last two hours we agreed that the case has three parts.  You have settled on an amount for each of the first two parts, but are $5,000 apart on part three.  It was worth it to you to go to court for $100,000, but is it still worth it for $5,000?”  The party’s attorney will then typically inform his/her client that it will cost nearly as much, if not more, than $5,000 to take the case to trial, win or lose.  After this scene has been played out in each caucus, the parties decide to find a number between $0 and $5,000 that will be a satisfactory settlement for part three.  Once again, the proper question has allowed the parties to reach agreement.  This strategy obviously works best with represented parties.  I have learned that an attorney who is willing to take his/her party to mediation is usually a mediator’s best friend.

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GROUP FACILITATION AND MEDIATION – Asking Questions – Part One

As a 26-year professional in the conflict resolution field, I use questions as a primary tool in work as a mediator and facilitator.  Asking questions allows me not only to clarify the issues (finding out what’s really on someone’s mind or what that person really wants or needs), but also to direct the conversation into productive paths when impasse looms and/or when people need to evaluate the consequences of reaching an agreement (or not).  Mediators with other styles than my preferred facilitative style often tell parties what they should do or give opinions on the strength of a particular party’s case – usually to move a party or parties to reaching a resolution.  Not only is that not my preferred style; I don’t think that is what a mediator or facilitator ought to do.  We don’t own the process – the parties do!  If they have a need to be told what to do, they can go to court, and a judge will provide that service.  If they want an evaluation of their case, they should seek the advice of an attorney.  They come to us so that they can be empowered to advance their own causes and find their own resolutions.

If I privately question the strength of a party’s case, I will ask questions to help him/her think about that.  Here is an example illustrating this point:

Some years ago, I was mediating a case in small claims court that involved a contract dispute between two businessmen.  The contract involved both written and verbal elements.  One party was convinced his massive stack of paperwork would prove his case to the magistrate.  (I knew from experience that the magistrate would never sort through all of those papers in the courtroom.)  The other party was equally sure that his “good word” would convince the magistrate of the rectitude of his position.  (In my experience, officers of the court usually like at least some actual evidence).  What to do?  Caucus!

I met with the man with the stack of papers.  I said, “That’s an impressive amount of paperwork you have there.”  He agreed that it was.  I asked: “Are you sure that, within that stack, you have exactly the right piece of paper that will convince the magistrate that your position is the correct one?”  He hesitated a moment and then assured me that he was certain that the magical document resided within the stack.  I then met with the other party.  I told him that I had no doubt that he could make a case before the magistrate that his word was good.  However, I also said, “Boy, that other guy certainly has a lot of paperwork relating to this case.”  He agreed that was true.  I then asked: “Do you suppose, somewhere in that stack of papers, he has just the right piece of paper that might, to some small extent, call your word concerning this case into question?”  Again, after a bit of hesitation, he assured me that it was impossible for such a piece of paper to exist.  I brought the two gentlemen back into the room together.  Within five minutes, they reached an agreement acceptable to both.  I call this: Reality checking with questions.  No one needed to tell either of these parties anything about his case – each was perfectly capable of doing his own analysis (with a little questioning from me).

The right line of questioning can also be used to pull two or more sides back from the brink of impasse.  I will illustrate that technique in “Asking Questions Part II“.

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