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The Closer
A Mediation Newsletter 
September 2012
When to Ask What
by James Rainwater
Sometimes it is what we do not say that can be more beneficial than what we do say. Knowing when to ask probing questions during mediation is a talent that is developed over time and with experience. Depending on the type of case and the personalities of the parties, the mediator should make adjustments in the timing and depth of clarifying questions and various proposals.
Subject-matter knowledge can be important, but a strong perception of the mediation's tone is quite often more important. Of course, styles of operation vary from one mediator to the next. However, being able to finesse the appropriate response is often based upon the skills of listening and analyzing, rather than bulldozing a proposal through the caucus room.
We all have heard tales of this mediator or that mediator who tells the parties exactly what to do and how a potential trial will be decided. And we have heard of mediators who present so many options that the parties become confused and frustrated. In either scenario, it appears that the art of asking pertinent questions was lost.
Clients want to be included in the decision-making process, and asking them increasingly complex questions is an excellent way to secure their active participation. So, is it appropriate to ask about "step 6" when we are still on "step 2"? The answer is usually no. By pushing too much, too early onto a party, the mediator risks derailing the entire conference.
A mediation can be compared to a living organism, and it requires constant attention. An experienced mediator will know, almost instinctively, how the conference is proceeding and how receptive the parties are to settlement at any given point in time. Also, this skilled mediator will understand when to ask the probing questions, when to present near-final offers, and when to suggest the best proposed settlement is on the table. Knowing when to ask can be just as important as what to ask.
