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Pre-Mediation Questionnaire: Dispute Clarification Tool

by John Gromala
John Gromala
Many disputes have a prior history of an amicable relationship. This is especially true in business disputes. Litigation (arbitration or court) will likely kill any prospect of continued relations. If you are already in litigation you may have experienced the impact of the adversarial proceeding, financially and emotionally. Even in personal injury or property damage cases you probably did not dislike each other before the incident occurred.

Thinking back on "better days" can create the atmosphere for productive dialogue. Discuss your responses with the mediator before the mediation conference. Review your answers to the questions and discuss the process and your expectations. Revise the questions to fit the facts of your case, but respond with the type of information exemplified in these questions.

Dispute Clarification Questionaire

1.What understandings and agreements did you and __________ have which you believe have been violated?

2.a) What changes, if any, occurred in these understandings and agreements?
b) How do you and __________ differ in your current interpretations?

3.a) What was your relationship at the beginning; how did you get together?
b) Did you trust each other?

4.a) When did you first suspect that something was going wrong?
b) Did you feel betrayed, taken advantage of, ignored, undercut, etc.?
c) Did you discuss your feelings with__________; when; how often?
d) Have these beliefs changed, if so, how?
e) What do you believe__________owes you on account of these actions?

5.Are there any areas where you agree, or are close to agreement?

6.What are the areas of greatest disagreement?

7.In the areas of disagreement, what criteria will you use to judge the merits of your and __________'s claims?

8.What are the most important points an agreement must have to satisfy you and why are they important?

9.What do you believe are the most important points to__________?

10.a) Are there topics you would prefer to not discuss?
b) Are there things__________might say that would cause you distress or cause you to lose your temper?
c) If this happens how can I help to keep our discussion on track?

11.Where you have different ideas on how things should be done, do you have anything to support your belief such as industry standards, notes, receipts, witnesses, photos, etc.?

12.Are there areas or items you are not willing to discuss? Why?

13.If we do not arrive at an agreement and you go to court or arbitration:
a) What do you think could be your best result?
b) What do you think could be your worst result?

14.Please indicate which of each of the following three statements are more important to you.

a) an immediate solution even if it is less than I would like,
or
b) a big win even if I have to wait a few years;

c) financial satisfaction,
or
d) emotional satisfaction;

e) ending the conflict and dispute quickly,
or
f) getting even.

Please indicate which of the three statements is the most important and which is the least important to you.

15.a) Is a settlement without an apology acceptable;
b) Is an apology without payment of money acceptable?

16.If this goes to court what are all the issues you believe will be disputed?

17.Do you have any suggestions as to what I might do that would help bring about an early resolution of this problem?

18.Is there any other information that might have a bearing on this matter?

This is a tool for self-assessment, not for the mediators judgment. Success in mediation is dependent upon preparation.

Your answers determine whether the mediation process can fulfill your needs. If a victory is absolutely required you might consider proceeding with litigation.

The process of coming up with answers to these questions may stimulate new avenues of thought. Taking the time to reflect on your answers to these questions, before you see a mediator may help you see why you are on this particular path.

Biography


John A. Gromala, J.D., has more than 30 years of experience in transactional law and estate planning. He practices exclusively as a mediator in all aspects of trusts, wills, and conservatorship disputes (www.mediation-adr.com/gromala). He has given seminars for attorneys, business people, and mediators in the United States and Europe. His roles while practicing law included Fellow, American College of Trust and Estate Counsel; Member, Executive Committee—Estate Planning, Trust & Probate Law Section, California State Bar; and President, Humboldt County Bar Association. He is the West Coast Director of Business Mediation Associates.

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Website: www.mediation-adr.com/gromala

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