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Chicago International Dispute Resolution Association
REFRESHER GUIDE MEDIATORS AND MEDIATION
by Erwin I. Katz
ACCUMULATING INFORMATION (continued)
Questioning
Part of accumulating information from the parties takes place through the mediator's use of questions. The following are examples of types of questions and description of when (if ever) they may be appropriate for use by the mediator:
Clarifying
Commonly used to gather a clearer understanding or to confirm a piece of information. Clarifying questions are typically used at the beginning of mediation when the mediator is gathering information to understand the issues for discussion.
Khun _____________, can you explain in greater detail the defect in the air conditioner that caused the fire?
Khun _____________, how would you like for that payment to be made and where?
Open
This question is designed to get or keep the parties talking and should be used predominantly in the early stages of the mediation when the mediator is gathering information. Asking open questions gives the parties the opportunity to share their experiences with you. Invite them into dialogue by asking them these broad questions which require explanations. As the session progresses, you should ask questions narrower in focus.
Can you please elaborate on that statement?
How do you see the situation being resolved?
Closed
These are questions which can be answered with merely a "yes" or "no" response. While this technique may extract some information, it should be used with discretion because it does not elicit a complete response. The best use of such questions are with parties who volunteer a lot of information and you are trying to limit their domination of the mediation.
I have noted that you are concerned about the rent and the dog. Are there other concerns you would like to raise now?
Does this written agreement completely satisfy your original claim?
Justification
This type of question usually begins with "Why" and calls on someone to justify their position (e.g., past behavior, actions, feelings). This type of question tends to make people feel defensive and is often judgmental in nature, mediators should try to avoid using it.
Why did you break the lamp?
Compound
This is typified by multiple questions being asked as one question. The problem with using a compound question is that it is confusing to the person who has been asked the question and thus leads to a confusing answer. As a result, mediators should try to avoid using these questions.
Did you go out that night and was the door locked when you left?
Use of good questioning techniques can help the mediator learn and clarify information. More importantly it can help the parties understand more about the dispute from each other's perspective. A good exchange of information and joint problem solving can be fostered by the mediator's approach with the parties. Use your questions to clarify, explore possibilities and to confirm movement or agreement not to satisfy your curiosity or judge the situation.
Non-Verbal Communication
Non-verbal communication is vital in evaluating the information we receive from other people. Communication experts estimate that 55% of the information we gather is from nonverbal behavior; 38% from the tone and sound of the speaker's voice and only 7% from the actual words that the speaker uses. AH of you have seen and responded to non-verbal cues many times in your life. Paying attention to the silent cues you receive from the parties and observing the communication between the parties will assist you in mediating their case. These cues may help you identify hot spots, priorities, closely held values, areas that are negotiable, etc.
Non-verbal cues will serve as guide posts and indicators, but be careful not to make assumptions based on a single non-verbal action. For example, traditionally, body language experts identified standing with one's arms crossed in front of him/herself as a "closed" posture indicating an unwillingness to participate or hostility to the person or issue being discussed. Today, we understand that there might be many different reasons for assuming such a posture, e.g., one is cold one is comfortable like that, one is missing a button and trying to cover it up, and so on. Experts now say that we should look at the total package of behaviors that an individual exhibits and more importantly, changes in behaviors. For example, if during a mediation, two businesswomen are discussing their contract and are making offers of settlement back and forth to each other. All of a sudden, one of the women turns her chair completely around so her back is to the other woman. Something obviously occurred in their conversation that made the woman react in the manner she did. In this situation, the mediator would probably react to the cue and try to draw the woman back into the discussions by exploring the reasons for the rapid change in tone of the discussions.
Most non-verbal communication will not be quite as obvious as the example used above. As in all aspects of the mediation, the mediator must be careful not to assume. If you think you are getting some signals or cuts from one of the parties or their demeanor does not match what they are verbalizing, you should explore these issues with the party or parties. It may be appropriate to meet separately with the party to validate the feedback you are receiving in some cases. in addition, as mediator you need to be careful with the non-verbals cues that you are exhibiting. The parties may not know that you are just comfortable with your hands folded, they may think that you are not interested in what they have to say.
Summary
Through your efforts you have established an atmosphere in which the possibility of constructive dialogue is enhanced. This is no small achievement, for frequently the parties have let their concerns simmer, exchanged heated words, and then avoided each other until court. Assisting the parties in communicating with one another constitutes an important first step toward building a solution.
The mediator's role in the information gathering process is one of structure and patience. You will help the parties reorient their perspectives from an adversarial posture to one of collaboration.
Your role is not passive. You are listening for the concerns the parties express and the practical ways in which they can be met. You are trying to help the parties reestablish trust so that practical solutions do not evade them. You can accomplish this by making certain that, by your own example, you do not belittle the intentions or needs of the parties. Your role is not to endorse each person's perception as "right or wrong, but to acknowledge their concerns as ones which in fact they possess and which constitute the benchmarks of settlement possibilities. Since all parties are different and bring varied perceptions to a situation, the mediator should not assume all parties fit in the same box. The mediator must listen carefully and appreciate the unique strands which individuals will highlight - if given the appropriate forum for doing so.
Your task is to engage the parties in a joint effort to resolve the problem. An effective mediator will immerse themselves in the dispute long enough to appreciate its facts and dynamics - while staying impartial - so they can lend a fresh perspective.
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Peter V. Baugher,
President
One South Wacker Drive, Suite 2800, Chicago, IL 60606 USA
312-409-1373 (Telephone), 312-701-9335 (Facsimile),