Enhancing Mediator Neutrality Through Question-Asking


by Pamela Lehman, Norman R. Page

September 2007

Neutrality is the sine qua non of the mediator's role; it provides the stable platform on which the parties can build a resolution to their conflict. Without it, the process lacks the trust necessary to foster compromise and good will.

Yet how is neutrality defined? Different sources provide different perspectives. Webster defines neutrality as "not allied with, not supporting, or favoring either side in a dispute" (Webster's II New College Dictionary, 2001). Christopher Moore (2003) adds that although the mediator has a vested interest in a fair process, there should be no interest whatsoever in the ultimate outcome (Moore, 2003).

Because neutrality is so vital to the mediation process, mediators should strive to use every method possible to enhance it. Mediators must apply their communication skills to engage the parties equally. These skills include nonverbal communication (e.g., equal eye contact and sitting an equal distance from each party) and verbal communication, making overt claims of neutrality using credentials and metaphors. A helpful metaphor would be, "I am on a balance beam and if I lean one way or the other, I'll fall." In addition, involving a co-mediator can increase the perception of neutrality and help limit concerns of gender or racial bias. Finally, and perhaps most importantly, the mediator must avoid offering information or opinions related to the content of the dispute. Neutrality can be enhanced through question-asking.

Asking questions

Assuming the mediator's role is to facilitate a negotiation, then the agreement should come from the parties themselves and not the mediator. One technique that can enhance the mediator's neutrality is skilled questioning. Question-asking can be used to elicit the crucial facts of the case, uncover emotional currents, and clarify the conflict's narrative. When used properly it can also increase the chances for a satisfactory outcome.

Question-asking is an established practice in many fields. Psychologists, for example, use skilled questioning to assist clients to better understand their subjective emotional state. In the legal arena, questioning is used by attorneys for fact-finding from witnesses. In the medical field, careful questioning of patients helps elicit important information on which to base healthcare decisions, to establish trust between practitioner and patient, and even to reduce the likelihood of malpractice suits (Evans, Tulsky, Back, & Arnold, 2006; Coulehan & Block, 2006).

It therefore makes sense to apply this critical skill to mediation. The mediator can use question-asking to help parties express facts and feelings regarding the dispute. Appropriate questioning can follow the format of interviewing which contains four basic question types: open, closed, probing, and leading.

Open questions

Open-ended questions are broad and have few restrictions on the recipient's choice of responses ("What is your view of this conflict?" or "How do you visualize the outcome of this case?"). Open questions allow a party to communicate his or her perception of the situation. A subjective description is invited because there is no preconceived framework to consider (Moore, 2003).

Open questions can have two major impacts on the process. They can encourage the parties to engage the conflict and can empower the parties to craft their own unique solutions. These types of questions are considered appropriate or "process enhancing" because they encourage the parties to open up, express the facts of the conflict, and articulate their feelings. For example, the mediator might ask a terminated employee, "Can you tell us what you felt when your employer told you he was firing you?" This allows the aggrieved party to express his or her emotions and creates the opportunity to feel heard (Bennett & Hermann, 1996).

Sometimes in replying to open questions, the party (possibly for the first time) is able to express his or her emotions regarding the conflict. How the response is received is also important, e.g. an emotional outburst at the beginning of mediation can relieve emotional tension and spur the parties forward, yet the same outburst toward the end might spark an impasse. In practice, using broader questions at the beginning of mediation encourages constructive venting to occur in a timely way, just as narrowing the questions during the final stages can minimize the likelihood of a destructive outburst.

Closed questions

Once the basic information has been expressed, the mediator can begin to use closed questions to narrow the scope of the responses. Closed questions can be answered with yes or no, or in a very few words ("Did your employer state the reason that you were being laid off?"). The mediator can also use closed questions to regain control over the process. For example, the mediator politely interrupts and asks the party a closed question; following a brief reply, it again becomes the mediator's turn to speak and move the negotiation to a different topic.

Probing questions

To further encourage a party to provide specifics, the mediator can use probing questions to uncover important feelings and information. Probing questions use such words as why and how so. This type of questioning encourages the speaker to provide in-depth responses to information that has already been provided ("Did you realize they were concerned with your job performance? How so?").

Leading questions

Finally, leading questions might be used to move the mediation in a positive direction. Leading questions are ones in which the question suggests the answer ("If your employer had expressed dissatisfaction with your performance, wouldn't you have requested additional training?"). The mediator must be cautious about injecting his or her opinions regarding the conflict through leading questions and, as such, they should be used strictly to facilitate the process. Of the four question types, this one is the least used and should probably be limited to caucus situations. For example, "You want to make things right, don't you?"

As applied to the mediation context, progressing from open through closed questions allows the mediator to manage the process. For example, should one party demonstrate a sense of entitlement causing the mediation to lurch toward an impasse, the mediator's questioning technique might follow this sequence: Open question: "John, how would you describe your marriage?" John may respond, "Things are fine as long as I have the say-so". The mediator then proceeds with a probing question: "How do you think Maria feels about your attempts to control her?" The mediator can search for additional information by asking a closed question, "Was there a time when Maria wasn't okay with it?" or a leading question, "Do you think your outbursts might be frightening to her?" This type of question can affirm a party's position while encouraging the party to consider a different and more productive approach.

Some applications

As seen in the following examples, mediation functions can be readily accomplished by asking questions.

  • Promote empathy. "John, can you put yourself in Mary's shoes? How does she feel?" [open question]
  • Promote creativity. "If you were to think out of the box on this issue, how would you respond?" [open question]
  • Appeal to a party's self-interests. (in caucus), "What will happen to you if this negotiation fails?" [open question]
  • Seek information. "How long has this conflict been going on?" [closed question]
  • Separate issues. "Are you willing to do a little horse-trading based on what's been said?" [closed question]
  • Invite initial interaction. "Having described the conflict, why do you feel it goes counter to your values?" [probing question]
  • Probe issues. "Can you tell me how you feel about this issue?" [probing question]
  • Promote responsibility. (in caucus), "You do accept some responsibility for this situation, don't you?" [leading question]
  • Invite movement. (in caucus), "Why don't you throw him a bone?" [leading question]

Precautions

Alternatively, poor questioning techniques can discourage agreement by putting the parties on the defensive or ignoring unspoken needs ("How could you make such a ridiculous offer?") (Bennett & Hermann, 1996). The mediator must always be aware of the impact his or her questions will have on the parties and be prepared to handle the responses (Bennett & Hermann, 1996). By avoiding biased or judgmental questions, the mediator can maintain neutrality and the integrity of the process.

Another type of question, the loaded question, is inappropriate for mediation. Loaded questions express an opinion of the interviewer such that no matter how it is answered, the respondent loses face ("To what defect of your personality do you attribute this error?"). Again, because loaded questions can be sarcastic and have the potential to undermine the mediator's neutrality, they should be avoided. Similarly, the mediator should not allow the parties to bicker with each other using loaded questions.

Another potential trap occurs when the mediator has a background in a professional field (e.g., medical, construction, real estate) and may feel that his or her background knowledge would help to move things along. A mediator's expertise in a relevant content area should serve to make the mediator a more informed listener and aid in formulating insightful questions, but not to add opinions or factual information. For instance, a mediator with a medical background may erroneously offer a comment such as, "I have a medical degree, and I can see that this bone was set using the pin and screw method which is considered acceptable medical practice." This type of input could negatively impact the parties' perception of the mediator's neutrality. To be safe, the mediator should restrict his or her expertise to the mediation process by asking questions and refrain from expressing facts and opinions regarding the content of the dispute.

Of course, the mediator is not restricted to question asking; it is the authors' view, however, that making statements should not exceed about 20% of the mediator's input. The mediator's opening statement, for instance, can contain information about the process (credentials, reassurance, guidelines, etc.). The mediator can also summarize, but each summary should be followed by a question of verification ("Did I understand you correctly?").

Question-asking is an art. It takes self-control for the mediator to limit the majority of his or her participation to asking meaningful questions. The payoff, however, is significant as it relegates the substance of the negotiation to the contributions of the parties and sidesteps the mediator's opinions about content.

Mediator neutrality is the basis of a successful process. By using appropriate questioning techniques, the mediator creates a safe forum for the parties to contribute information and resolve their conflict. Skilled questioning facilitates the process by accomplishing two goals; it allows the content to come from the parties themselves, and it reduces the likelihood that the mediator will add unwarranted opinions and inappropriately influence the outcome. The result should be a fair process in which each party feels heard. After all, isn't that the value of mediation? [leading question].

References

Bennett, M. & Hermann, M. (1996). The art of mediation. Notre Dame, IN: National Institute for Trial Advocacy.

Coulehan, J. L., & Block, M. R. (2006). The medical interview: Mastering skills for clinical practice. Philadelphia: F. A. Davis.

Evans, W. G., Tulsky, J. A., Back, A. L., & Arnold, R. M. (2006). Communication at times of transitions: How to help patients cope with loss and re-define hope. The Cancer Journal, 12(5), 417-424.

Moore, C. W. (2003). The mediation process: Practical strategies for resolving conflict (3rd ed.). San Francisco: Jossey-Bass.

Webster's II new college dictionary (2001). New York: Houghton Mifflin.



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Biography





Pamela Lehman is an instructor of communication at California State University, Fullerton and a student in the master's program.  She is also an attorney with experience in the medical malpractice field.  Her areas of interest are mediation and health care communication. 
Norman R. Page

Norman Page is a volunteer mediator through the Institute for Conflict Management, a subsidiary of St. Vincent de Paul, Santa Ana, California.  He mediates community, small claims and civil harassment disputes.  Dr. Page is professor of Human Communication at California State University, Fullerton where he teaches mediation.




Comments



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 Jennifer Artim,   Mission Viejo CA  jartim@mediateyourmatter.com      09/19/07 
 I love it! 
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Norm & Pamela, What a great article! Hmmm, I do recall a discussion about neutrality (or, rather "impartiality" as you know I'd rather call it) from the refresher training. Norm, I'm sure amazed at your perspective in each discussion and article. Keep it coming! Jennifer Artim
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