Introduction: Overview of the Mediation Process
When conflicts in the enforcement of contracts or when there is a violation of rights of another, people traditionally go to court to settle the issues and arrive at a just ruling that is in accordance with the applicable rule of law. However, court processes may take a long time due to the need to follow strict procedures, and the parties may be forced to spend a lot of money in defending their claims.
Due to problems like problems like these, disputing parties have been forced to consider alternative dispute resolution processes like mediation, which seems to be gaining a lot of popularity as a substitute to court processes for settling disagreements between conflicting parties. Mediation can be seen as “any moderated conflict resolution discourse, regardless of the procedures, methods or tools applied. That is, except for the mere presence of a mediator, our definition does not place any requirements on the mediation procedure.” (Gordon, T and Oliver Märker, 2002)
In a mediation process, disputing parties voluntarily undergo an informal process dispute resolution process that involves the participation of a neutral third party, who helps the disagreeing parties to arrive at a solution that will be reasonable and agreeable for the parties involved. The mediation process provides is an invaluable opportunity for the parties that are in discord to discuss their issues calmly and voluntarily arrive at a mutually acceptable solution. This is the key difference between mediation and litigation. In a litigation process, a judge presides over the case and imposes judgment in accordance with the rules of the forum, whereas in mediation, the resolution of the issue comes as a result of negotiations and agreement between all parties involved. By definition, mediation can be distinguished from other forms of dispute settlement like deliberation or argumentation, “not on the basis of features of a particular procedure, but rather on the basis of its goal: conflict resolution.” (Gordon, T and Oliver Märker, 2002)
This difference between the two dispute settlement processes also depicts their difference when it comes to the most effective means of arriving at a favorable solution for the disputing parties.
Mediation offers many advantages to the parties involved. Mediation is a less expensive process for dispute resolution, because in mediation,” only one professional is involved, so the cost of resolving the dispute is much less than dispute resolution by the legal system” (Kelly, J. 1990) Mediation also helps the various parties involved to save valuable time because disputing parties are not required to have legal representation during a mediation process, and negotiation usually leads to a mutual agreement faster than in an adversarial legal system.
The Mediator’s Role
These advantages point to one key feature of the mediation process. The mediator exists in the process only to serve as a facilitator of the communication process (Nathan, 1998). The mediator often enters the picture when the parties already disagree on certain issues involved in the controversy (American Mediation Services, Inc., 2004).
He merely exists to encourage the parties to talk about the issues first and try to arrive at a settlement (American Mediation Services, Inc., 2004). This can be accomplished through appropriate questions that bring to the fore the issues that may not be perceived by the parties because they are overcome by their prejudices and intense feelings.
It should be noted, however, that essentially, the parties still have the final decision as to the process to be followed and the settlement terms to be finalized (The U.S. Equal Employment Opportunity Commission, 2004).
The Non-directive Approach to Mediation
The Role of Questions in Making All Parties Concerned Comfortable
Prior to mediation, the parties involved in a dispute are likely to have a lot of hostility between them, due to their disagreement or conflict, and a mediator is responsible for establishing and facilitating some level of communication between the parties, thereby enabling the disputing parties to listen to each other with less prejudice. This can be achieved by the mediator’s use of appropriate questions, directed at the parties involved. By using a proper method of questioning, the mediator can ensure that all parties involved in the dispute resolution process are given the chance to express their opinions and ideas, and that both sides listen to what the other party has to say.
Also, the mediator can help the parties overcome their initial emotional position and be able to see reason while issues are discussed, by the use of questioning. (Project Sentinel, 2006). When the mediator succeeds in making each party see reason and understand the position of the other party, then everyone involved in the process would persons be assured that the proposed solution takes into account the interests and motivations of all (Nathan, 1998).
The Role of Questions in Reaching a Solution
The success of the mediator in making each party involved in the dispute to listen to the other can practically translate into the best solution for resolving the conflict, thus “giving each party a better sense of the other’s case. It also provides the opportunity to test each other’s resolve to carry on with the dispute.” (Zack, J. G. 2000)
During a mediation process, improved listening and communication can lead to mutual understanding between the conflicting parties, “and this can bring about a stronger resolve to achieve an inclusive solution” (Nathan, 1998).
The role of the mediator as the source of questions is exemplified by CCR’s non-directive approach, which places importance on giving parties lots of opportunities to tell their stories and state their perceptions, which would allow them to solve their problems jointly. Moreover, it is important that mediators possess good “listening, paraphrasing and summarizing skills, to ensure that both parties are heard and understood. Aside from the mediator’s experience that is gained in training, “an attorney may also want to assess how long the mediator has been a mediator and how many cases he/she has handled both in the specific legal area, and in general.” (Rendón, J. M. 2004)
The use of questions can also help a mediator to summarize points made in the course of mediation. For example, in paraphrasing and summarizing discussed points, the mediator could ask the parties if he was correct in restating the declarations made. This shows that asking questions allows the true perspectives of the parties to emerge.
The role of a mediator as consisting of putting forward questions to the parties also meets the concept of a “process advocate,” as explained by Nathan. According to him, a process advocate should focus on the fairness of the process, so that the parties may reach an equitable solution (Nathan, 1998). Being a process advocate, the mediator cannot assume the role of advocate for one party; rather, a mediator should be neutral and faithful to the mediation process alone.
The importance of the inquisitive character of a mediator may again resurface even after the parties have agreed on a settlement. A good mediator should not be content with the fact that the parties apparently reached a solution to the problem. It is possible for settlement to turn out to be superficial, which will mean that the mediator’s job has not been completed. In such a case, a mediator should be able to ask the correct questions to ascertain the real feelings of the parties involved in the process. Moreover, “asking the proper questions could also help the parties reach that safe place where trust prevails and they feel comfortable enough to open up, and this will make the mediation process much more successful.
The Place of Questioning in the Mediation Process
The mediation session is the stage where the mediator makes the parties to the controversy comfortable to enable them to talk freely, with a view in mind of achieving a settlement. The Massachusetts Department of Education has formulated the different stages of its mediation sessions, which consist of three parts. In all these stages, the mediator can use the questioning technique in order to achieve his goals.
The first stage is the preliminary stage, wherein the mediator takes a relatively active role in establishing the tone of the session, the ground rules to be followed, and the antecedent facts. During this stage, there is also “evaluation and selection of options like, the discussion forum and argumentation system” (Ludwig 1997) (Gordon & Karacapilidis 1999), and there can possibly be a multi-criterion decision support system created” (Rinner May 1999) (Jarke, Jelassi et al. 1987).
At this stage, the mediators are still unacquainted with the parties and the parties are more or less hostile or unfriendly to each other because of the conflict. Thus, the primary concern of the mediator at this juncture is to make the parties comfortable by establishing a peaceful environment that is favorable to discussion of possible settlement arrangements
One of the first questions a mediator should consider in the early stages is getting to know about the parties themselves. Thus, the mediator may ask for a brief and simple introduction from the parties at the beginning.
It appears that this stage may be important for several reasons. First, it allows the mediator to have a background on the parties, which may give him insight into their positions. Second, a simple question like that allows the parties to relax since they are not immediately bombarded by stressful questions regarding the controversy. Their focus is not readily directed towards the issue at hand; rather, they are led to a safe place where their persons are important. Thus, by asking questions, the mediator could succeed in achieving one of his primary goals, which is to make the parties comfortable in the setting to make them want to speak freely about their positions.
This stage of the mediation process is also where the parties and the mediator agree on the rules to be followed all throughout the session. Thus, it is the mediator’s duty to ask at this point about the preferences of the parties. For example, the mediator should ask if the parties want a caucus with the mediator so that they could each have their turn in sharing some issues or concerns with the mediator, to the exclusion of the other party (JAMS, 2003; FINRA, 2007).
The mediator should encourage the parties to have separate meetings with him because such would give them the opportunity to tell the story from their own point of view, without fear of interruption or contradiction (Total Conflict Management, 2007).
Separate meetings with the mediator will allow him to explore the controversy from “three perspectives: 1) the past, 2) the present and 3) the future (Total Conflict Management, 2007).” Such meetings should be maximized towards identifying the concerns and feelings of each party. The existence of this kind of mechanism should be maximized by the mediator and the parties, because it allows the mediator to ask questions which might be found offensive or unfair by the opposing party. The confidentiality and exclusivity of this kind of proceeding leads to the unearthing of more useful information.
The mediator’s task of asking correct and proper questions again takes center stage in stage two of the mediation process, which is the discussion stage. At this stage, the disputing parties face up to each other and present their grievances, not only to the mediator, but more importantly, to the opposing party. This is the time when each party gets the chance to convince the other of the genuineness of their interests, and the fairness of his position, while at the same time opening his mind to the justness of the other party’s position on the conflict.
The participation of the mediator at this stage is crucial, because it is his duty to ensure that both parties are equally given the opportunity to present their respective concerns. At this point therefore, it is essential for a mediator to know when to stop one party from talking, and ask the other party to share his thoughts. The mediator shall achieve a balanced view of the controversy, and his questions shall guide the parties when they are telling their respective versions of the story.
The discussion stage is also the part where the mediator shall ask the parties regarding matters that are yet unclear to all. Thus, he shall endeavor to ask questions that clarify facts or positions that are vague or admits of several interpretations. In doing so, the mediator shall summarize the points already covered, and ask each party to confirm whether he agrees or ask them to clarify or modify the points that are not in conformity with the positions taken.
In addition, the mediator shall, at this stage, assist the parties in exploring possible settlement arrangements and alternative solutions. This can be done by asking the parties how they feel about a particular arrangement and if such arrangement would be acceptable to them. If not, the mediator can ask such disagreeing party about his own suggestions and then refer such suggestion to the other party for his opinion or approval.
Final Stage: Closure
The final stage means that the parties have reached an agreement that is acceptable to both parties. Although there are still a lot of questions to be resolved, despite the fact that this is already the final stage of the mediation process. The mediator must still determine who among the parties would be tasked with the implementation of the agreement. The mediator can now ask whether the parties would prefer a third party to implement the same. He should also ask from the parties their expectations from the other and what actions they commit to perform.
Even at this point, there could be disagreements on other matters. In such cases, the mediator shall again ask questions to elicit the best acceptable arrangement for both parties.
When it appears that the parties have finally reached an agreement, the mediator shall summarize the agreement before them and put it in writing. He shall then read it before the parties and seek their conformity to the written agreement as the true settlement of their issues.
The foregoing shows the importance of the role of the mediator in arriving at a mutually acceptable solution through asking questions. From the beginning, when the parties are still setting the rules of the mediation proceedings and establishing antecedent facts of the controversy, up to the time that the parties arrived at a tentative agreement, the mediator should ask questions to ensure that the tentative agreement reflects the true intent of the parties.
The mediator cannot be sluggish in his duties and be content that the parties have apparently reached an agreement. Through searching questions and sensitivity to nonverbal cues, the mediator can conclude that the proposed solution does not address all the concerns of the parties.
Thus, in such cases, the mediator should ask correct questions, with carefully chosen words, in order to ascertain which matters are not in conformity with the intent of the parties.
At each point where a proposed solution is put on the table, the mediator should ask the parties whether such proposal is acceptable to both. In the negative, the mediator shall ask each party what kind of modifications the parties need to make the proposal acceptable.
Types of Mediator’s Questions:
Although the discussion above already illustrates the proper stages wherein mediators shall ask certain types of questions, it is still useful to look at the different types of questions that can be stored in a mediator’s arsenal. Knowledge of this classification of questions would lead to a better understanding of the mediator’s role and tasks, and would allow him to fully utilize these questions towards reaching his goal (Katz).
Different stages of the mediation process require different types of questions. In the early stages of the mediation process, the parties are still at a loss as to the degree of disagreement and the claims of each party. Thus, the mediator’s questions at this point are directed at getting a clearer understanding of the issue and gathering relevant pieces of information (Katz). These types of questions are called clarifying questions (Katz).
Katz provides the following examples of clarifying questions:
“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?”
It is noticeable that in the first example, the mediator is simply asking for more details as to a fact already admitted. Such kind of question shows the mediator’s role as facilitator rather than a judge or an advocate.
The same is true in the second example, because the mediator in that example merely elicits suggestions from a party. Such suggestions help both parties to know the interests of each other. Having a suggestion on the table will facilitate a reaction, whether favorable or not, and such would pave the way towards more possibilities.
The reactions of the parties to proposed solutions should serve as a cue to mediators to keep pressing for answers. He may ask the parties for the reason behind their reactions, and ask why the suggestion is favorable or unfavorable to his cause. This is also the best time to ask how the suggestion can be improved to meet his desires.
Another type of question that is used in the preliminary stage of the mediation process is the open question (Katz). It also has the same function as the first kind, which is to elicit information (Katz).
Katz provides the following examples of open questions:
“Can you please elaborate on that statement?”
“How do you see the situation being resolved?”
These questions’ goal is to make the parties talk and share their thoughts and experiences to the group (Katz). These questions are useful because they are broad, and admit of a larger focus (Katz). The parties are thereby given more freedom in answering the questions, which is an encouraging tool to engage them into a dialogue (Katz).
It is apparent that open questions may be the most useful type of questions in the arsenal of the mediator. Open questions allow relative freedom on the parties to discuss whatever answers they feel are responsive to the question.
The examples given above show how broad open questions can get, and the answers of the parties are practically limitless. These type of questions allow parties to explain their sides, their feelings, and suggested solutions.
The only caveat for mediators in using this type of questions is that they should make sure that parties are given equal opportunities to explain their sides. In doing so, the mediator, through questioning, is able to encourage active participation to the discussion from the parties, which is the only way for the parties to arrive at an equitable settlement.
When there is already a lot of information volunteered and it is time to limit the discussion towards reaching a settlement, it is time for the mediator to tailor his questions in order to narrow down the issues. The questions should no longer be exploratory, but limiting (Katz).
An example of this type of question is a closed question, which merely elicits either a “yes” or “no” response (Katz). Katz recommends that mediators use this type of question sparingly or with discretion because of the limited response it elicits. This type of question is best used to minimize the domination by one party of the entire discussion.
The following are examples of closed questions:
“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? (Katz)”
This type of question is useful to mediators, despite Katz warning as to the dangers that could result from its use. This type of question is unique, because it serves another purpose other than elicit a response or information.
The Use of Questions in Getting Proper Focus
Closed questions can be a powerful tool to a mediator who needs to put his foot down in order to gain control of the mediation process. As pointed out above, mediators serve as facilitators of communication. Being in such a position, mediators should ensure that the parties are given equal opportunity to present their sides. Thus, it is important that the mediator is empowered to limit the input of only one party, in order to allow the opposite side to emerge. While mediation processes encourage full participation of the parties, it does not mean that such be made at the expense of defeating the claims of one side.
Thus, closed questions are very useful in cutting short the aggressive presentation by one party of his side. Since the answers to this type of questions would only be either a “yes” or a “no,” the answering party cannot dominate the discussion to the prejudice of the less assertive party.
Another useful purpose of closed questions refers to its power to limit the discussion to more pressing issues that need resolution. Closed questions prevent parties from blabbering about unimportant issues or facts, and allow the mediator to steer the conversation towards the discussion of relevant issues.
Another type of question that is useful to mediators is the justification question, which generally calls upon the party to validate or rationalize his position (Katz). Justification questions often begins with “why,” and an example is as follows:
“Why do you think you deserve payment?”
Thus, the question asks the party to provide reasons for a position. Reasons put forward by the party should be evaluated by the other party and the mediator and use them to determine the acceptable solution.
While Katz believes that this should be avoided because it places the party in a defensive mode, this type of question can be useful for the other party and the mediator to understand where the defending party is coming from. It is possible that one party may have adequate justification for his actions, and this should be taken into account when formulating the settlement arrangement.
Justification questions may reveal that a party’s actions are not intentional, in which case his liability may be reduced. Justification questions may also show that a certain action is made necessary by the circumstances, in which case the liability of one party may actually be completely written off. On the other hand, justification questions may show that the claiming party’s claims need to be addressed and met, in which case the mediator could make the owing party feel responsible for his actions.
Finally, there is the compound question, which is composed of several questions rolled into one. An example of this question is:
“Did you go out that night and was the door locked when you left?”
These questions are complex and dangerous to use because they tend to confuse the person to whom the questions are directed (Katz).
These various types of questions are indispensable tools for a good mediator. Used correctly, the mediator would be able to facilitate clear responses that would enable both parties to see reason and agree on a mutually acceptable solution.
However, Katz has a point in warning against a mediator’s use of this type of questions. It is better to use simple questions in eliciting answers or suggestions so that the mediator is sure that the party knows which issue to discuss because it the relevant one. It is not useful in any mediation proceeding to confuse a party into answering in a certain manner, because in the end the solution to be had would not be satisfactory.
It is also not advisable to hasten the mediation process through the use of complex questions because the same could backfire, and further delay the resolution of the controversy. Thus, it is better to break down the components of a complex question and ask them separately, in order to elicit the proper response.
Mediation as a form of alternative dispute resolution is undeniably useful and practical, especially when compared with the litigation process. Mediation can only be successful if the parties cooperate and the mediator is skilled enough to engage the parties in an honest and sincere discussion.
The use of questioning technique is indispensable for a good mediator. Different types of questions, when used in the appropriate stages of the mediation process, can make each party understand the justifications and positions of the other party, and such understanding can give way towards the acceptance of settlement arrangements. Proper questions also unearth deep-seated psychological prejudices and predispositions that may hinder the fair resolution of the issues, and this could lead to the understanding of such biases.
In every stage of the mediation process, the acts of the mediator when asking questions and eliciting answers should remain confined within the limits of his role as a facilitator of communication, rather than an advocate or a judge.
Gordon, T and Oliver Märker (2002). Mediation Systems
Nathan, L. (1998). Modelling mediation: Evolving approaches to mediation in South
Ludwig, B. (1997). Computerunterstütztung der Argumentation in Gruppen:
Aufberarbeitung einer Sprechaktsequenz nach Habermas und Vorstellung
eines Prototypen. Wiesbaden.
Gordon, T. and N. Karacapilidis (1999). "The Zeno Argumentation Framework." Künstliche
Rinner, C. (May 1999). Argumaps for Spatial Planning. Proceedings of TeleGeo'99, First International
Workshop on Telegeoprocessing, Lyon, France.
Jarke, M., M. T. Jelassi, et al. (1987). "MEDIATOR: Towards a negotiation support system." European Journal of Operational Research 31: 314-333.
Project Sentinel. (2006). What is the role of the mediator? Retrieved October 3, 2007, from http://www.stanislausmediation.org/mediators.html
Kelly, J. (1990). Is mediation less expensive? Comparison of mediated and
adversarial divorce costs". Mediation quaterly 8. p. 15-26
Fisher, R & William Ury (1981). Getting to yes: Negotiating agreement without
Zack, J. G. (2000). Are you prepared for mediation?
Rendón, J. M. (2004). EFFECTIVE MEDIATION ADVOCACY