Desert Island Questions for Mediators

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When I was a wee lad, I drove others nuts by asking questions. They were, I am told, good open ones usually starting “…. but, why?”

As time passed, I grew into a know-it-all teen and forgot about asking questions, more intent on doing the telling.

Now at age 40 and in my role as a commercial mediator, I seem to have come full circle and once again appreciate the value of the well-timed, well-constructed question aimed at the essence of a discussion.

So what are my all-time favourites?

What questions do I ask that make people sit back in their chairs, audibly exhale, rub their foreheads and say “…. gee, that’s a really good question to ask me…I’ve never had to look at it like that before…”.

When they do of course, the glow of being a MARVAL (mediator adding real value at last) warms me to the point where I inevitably ask just that one question too many and I descend, once again, into that mediator’s fog of where the hell are we that we all come to know so well.

Undoubtedly questions are just tools, which, in the wrong hands, go, unnoticed and unanswered. However, when those same questions are asked with the artistry of a skilled and patient mediator, they constitute rigorous, peel back the onion layer type questions so necessary in the resolution of complex business disputes between articulate, pragmatic and impatient commercial participants. It’s all about timing and tone…timing and tone.

So here goes — if I was on a sinking ship and found myself washed up on a desert island with two arguing others and their lawyers, what questions would I hope to find had survived the swim? (My perspective is that of a mediator operating in the twilight zone of litigation. Therefore these questions appeal to me in that context, but not in others.)

Why haven’t the lawyers been able to sort this out — why do you need me?

Tell me what specifically you want me to do to promote settlement…I say specifically.

If you were (and you’re not) able to change some of the facts you have to rely on — what would they be…Why?

If you had your time again, how would you do it differently…Why?

Tell me about the way you did business prior to this dispute becoming a problem between you.

Where are they (the other side) in their thinking, do you think, right now?

What are the;

• $ costs to date/costs of getting to trial — lawyers, experts, internal etc
  
• non dollar costs to date/costs of getting to trial — lost work time, losing sight of the ball/competitor costs, waking up at night costs
  
• risk points/non risk points — why
  
• publicity/confidentiality/competitive issues
  
• what if you are wrong, although you may not be, what is the worst-case scenario — if you lost everything in court
  
• what if you are right, although you may not be, what is the best-case scenario — if you won everything in court
  
• but level with me, what is the most likely scenario — if the judge saw shades of grey rather than black and white that you see

What are the weak spots in the way you put your own argument…what strengths does the other side have? And vice versa?

How are you going to prove that – specifically? Lets try that…. if you were in the witness box and being cross-examined by Jane here, what would you be saying (in 30 seconds or less)?

What do you think Judge Smith would do with that approach? How are you going to persuade him to buy it — what words are you going to use?

So, what do you say they should have done? If they had, would you be here now? Why?

What straws might our resolution brick be built out of?

• $
  
• services/product – non-monetary equivalents
  
• actions — letters, apologies, acknowledgements, references etc
  
• costs
  
• performance of past/future obligations — either related or unrelated to the dispute
  
• recommitment (e.g. to the existing contract)
  
• Further and additional business — future relationship definition
  
• The wording of a press release/statement to significant others
  
• Usual terms — confidentiality, full and final settlement, no admission of liability etc

What if, and I have no idea whether they would, they did X? What if, and I have no idea whether you would, you were to do Y?

This morning you said X, and now you are saying Y, — tell me how that works

If we are talking about a payment from one side of the table to the other, when we come to look at what that will be, what will be the criteria by which you measure that payment? For example will it reflect;

• the original purpose of the arrangement
  
• the degree of perceived breach of the contract/arrangement between the two of you
  
• the consequences to you of that perceived breach
  
• the perceived legal positions
  
• an objective standard for these types of situations
  
• your costs