Professionals – especially attorneys – tend to have a habit of telling people what they need to do. They may ask lots of questions to gather information to analyze the situation and determine what they believe is the correct outcome. But in mediation, that is not the best approach.
Coming to a mediation with a fixed notion of what an outcome should be supplants the self-determination of the parties. The parties, not the mediator, have the right to decide on their outcome. This is hard for professionals sometimes. That’s because the temptation to announce a solution and “cut to the chase” is what they are accustomed to doing. After all, it feels good to ride in on a white horse and solve all the problems. Leave the white steed in the advocacy barn.
On the other hand, using the mediation skill of curiosity to ask questions rather than telling helps parties to hear one another more effectively. Plus, it happens frequently that a professional may go into a mediation session with an idea of where she thinks the case should go, only to realize that the parties have a different idea. Most often, the parties’ preferences are better. It’s important for a professional to have the humility and courage to let go of preconceptions.
Questions should be open-ended, i.e. not answerable by yes or no, but rather require the participant to explain or add additional information. Questions should not be used to lead the party to a conclusion the mediator has already reached.
The Three I’s
We at Family Resolution Institute embrace the mediation skill of curiosity. We use the three I’s:
Issues are the things that matter to the parties (whether they are legal points or personal concerns). It’s crucial for the mediator to clearly identify what the issues are from the parties’ perspectives — not the mediator’s. It takes the important mediation skill of real listening and questioning to get to what the issues really are.
Also, a party may hold to a legal issue for a personal, emotional reason. Frequently, the issue is not the issue. Good listening and curiosity can get to the real issues, which then will illuminate the pathways for settlement that may be missed if a mediator makes too many assumptions. It’s best not to assume anything.
Information consists of the details of the parties’ perspectives regarding issues. It could be a description of a “story”. Information can also be financial numbers, budgets, schedules and events. Sometimes people may differ on their perceptions of the information. It is very important to use curiosity with many follow up questions to really understand what is happening. Frequently, a party may not want to share all of the information. However, for mediation to work, transparency and equal access to all relevant facts and information is crucial. A smart mediator will never assume anything. Ask and explore until you know.
The ideas are the various options for settlement. It is important to generate as many ideas as possible. Even ideas that may seem bad at first may, after evaluation, turn out to be pretty good. Generating options and ideas is the fun, brainstorming part of mediation. It’s how mediators can show parties what’s outside the box. A skilled mediator will help the parties come up with as many different ideas as they can.
Don’t just assume that the typical options for settlement are the correct ones. Don’t be constricted by what is typical or what a court would do. Teach clients to open their minds and be creative. Importantly, the best ideas usually come from the parties. Don’t interfere with the parties right to self-determination by coming up with all the ideas. After all, this is the parties’ case– not the mediator’s.
By taking the time to explore the information, issues and ideas with an open mind and no judgment, the mediator can really open up the case for the parties. The role of the mediator is to help parties shine a light on what is possible and then let them make the decisions. This mediation skill opens pathways to settlement that may have been obscured previously. How do you learn what is possible? Don’t tell. Just ask.
*Certified Specialist – Family Law
The State Bar of California Board of Legal Specialization.