The Closer

A Mediation Newsletter June 2013

The Inquisitive Facilitator
by James Rainwater

A trait most successful mediators have in common is curiosity. The desire to learn more about something compels these mediators to seek more information than meets the eye, to explore untouched areas, and to combine reason with agreement. Inquisitiveness is second nature for the mediator.

If you think about settlement discussions, it is difficult for someone to garner much appreciation of the matter without asking a multitude of questions. Without probing questions and follow-up clarification, the resolution of any dispute is nearly impossible. An inquiring mind will expedite the settlement process and reduce client frustration.

Mediation offers the opportunity to ask questions that may appear to be irrelevant or unrelated to the issues. Yet, quite often these inquiries lead to other factors not previously considered by the parties. The settlement conference's goal is to resolve the matter to the parties' satisfaction. Such an agreement does not necessarily require a purely legalistic solution.

As a very simple example, a pending suit involves a disgruntled automotive repair shop customer seeking damages for work that may have caused additional damage to the car, which is now barely operable but had a history of complicated problems. On its face, this case may prove to be unyielding, as it turns into a "he said, she said" situation. However, the mediator asks the shop owner if he has any repaired cars for sale. In fact, he does, and a swap-out of vehicles is arranged to everyone's satisfaction.

While my example is simplified for effect, it does shed light on the usage of expansive queries - those questions that go beyond the facts as they seem to appear. If we do not ask for something, we will likely never get it. The seasoned mediator will know what to ask and, more importantly, what to do with the given answer.

Rainwater Law