Keys to Mediator Success: Issue Identification, Exploring Options, and Brainstorming

(Click to review Parts 1, 2, and 3)

Some words, spoken at the right time, in the right way, in the right context, can be particularly powerful. They can sometimes cause a new thought or unfreeze a position. This compilation is intended to assist trained mediators and add possibilities to their already extensive vocabularies. It offers many ‘tried and true’ expressions in a variety of contexts to help them unlock hidden possibilities and improve mediation successes.

Issue Identification

“Let’s not rush too quickly to the numbers. Instead, let’s work through the considerations that inform the numbers.”

“What are the issues we have to address so you can feel we’ve had a cooperative exercise?”

“How would you identify what’s underlying the needs and concerns you’ve expressed?”

“What’s fundamentally holding you back from having already reached agreement?”

“We’re trying to identify as many interests as possible from each of you. Then we can see which ones are complementary, non-conflicting. And what are the shared interests in common.”

“Apply relentless curiosity about the other party’s interests to spot tradeoff opportunities.”

“What do you imaging are some non-obvious reasons why they might say ‘No’ to your offer?”

“It seems there are _(e.g. 3)_main issues here. [Give each a label; group them]”

“It sounds like these are the ___#___ issues you brought to the table. The first has to do with _____. Another has to do with _____”

“There’s a couple of things working here: ____; _____”

“Is that a fair description of the issues?”

“Is there another way to characterize the _____ issue?”

“If we address these issues, would that help resolve the differences between you?”

“What would you like to say to ___ about your willingness to seek solutions to these issues?”

Reframing

[Convert ‘Positions’ to discovering ‘Interests’, including interests of their constituents and influencers. Restate whatever is said (often negative)… toward recognition of underlying fears, concerns and needs. Then explore behaviors that might meet the needs.]

“You say your demand for $XXX is non- negotiable.” [Reframe:]I’m hearing that long-term financial security is important to you, correct?”

“Let’s think about some novel and attractive ways of providing financial security to you.”

[Strip out any insults, the negative blaming language; get agreement on the underlying interests; and direct the discussion toward alternative ways to satisfy those interests.]

[If they say something like: “You’ve always got it wrong!. This is a dumb waste of time!” [Guess their concern as not being heard, understood or respected]. [Reframe:] “if I understand you correctly, it’s important to you to know your input will be taken seriously and taken into consideration if the meeting is to keep going toward discovering a resolution. Right?”

[If they say something like: “Ever since he was promoted, I don’t know how he could be so stupid to not know he’s turned into a ‘fricken tyrant.” [Guess there are some concerns about bothersome over-control behaviors.] [Reframe:] “I’m hearing that you’ve observed some specific things Ray is doing that are important to your feeling of security and autonomy.” “Do I hear you right?”

“[Reframe blame as joint responsibility for tackling the problem] You both agree that a mistake was made; how do we make sure it doesn’t happen again?”

“If I get what you’re saying, it’s important to you that ….” “You value ….” “You’d like …”

[Metaphor] “When you’re willing to ‘lay down your arms’ so-to-speak, it’ll feel good to share the resulting ‘peace dividend’.”

“It sounds like while you’re found yourself in _(frame)__ situation, the desired situation is more like __(reframe)__. [Not causes; not solutions]” “Help me understand why you think that’s reasonable.”

“[Upon their statement of a hard position] We all have our aspirations, I guess. And realistically what would go a long way to serve your interests.”

“That’s very interesting, could you please tell me a little about why do you want that?”

“Help me understand the problem you are trying to solve.” [Then reframe it in a constructive way.]

“I’m not sure I quite understand why you want what you just said.” “That seems very important to you. Could you please help me see why.”

“You must have good reasons for believing ________. I’d like to know more why you think so.”

“You seem to feel pretty strongly about this. Please give me more understanding as to why.”

“I hear what you’re saying. I’m sure that has a good purpose. Could you please explain it to me?”

“I’d like to frame the issues that have been brought up today as follows: ____” “Why not something like this: _________?”

“What if __________?”

“I hear that proposal. That’s certainly one possibility.”

“You may have a point there. How could you improve the proposal to make it more acceptable?”

“I hear blame, contributing factors and some desired states. Let’s see if we can create a suitable problem statement we can all agree on.”

Exploring Options, Generating Alternatives – Joint or Private Session

“It’s clear you both share the common goal of reaching a mutually acceptable resolution.”

“The key is to expose your needs and interests to each other and listen with an open mind. Focus on ways you can help the other person get their needs met.”

“This is not a contest to be won; it’s a joint problem-solving quest for a reasonable compromise solution.”

“At this point it’s time for both sides to begin working together to explore options toward a solution.”

“Okay, now I want you to use your considerable problem-solving abilities.”

“Now we’re going to think about some optional ways to resolve the dispute. As many ideas as possible.”

“I want to hear suggestions and tentative ideas about how you might overcome your differences and come together on some aspects of an agreement.”

“What would be your suggestions?” “What ideas do you have about how this might be solved?” “How do you want things to be improved?” “What would work well for you?” “Do you see yourself in a different position in the future?”

“Try lots of exploration and experimentation … sort of ‘trial and adjust’ negotiation.”

“It helps to let go of the past and focus primarily on the present, the options available right now.”

“New options and opportunities can be discovered when you view the problem from as many perspectives as you can.”

“Think about what it would take to get this resolved … for you and for them. What are some of the ways that come to your mind?”

“Think outside the box. As Einstein famously said: “We can’t solve problems using the same thinking that created them.” Use imagination, intuition and creativity.”

“From what you’ve learned about their interests, how would you shape the elements of a deal that would be very beneficial to them in their eyes … while not too bad for you?”

“If there are benefits to one party that cost less to the other party … you’re enlarging the pie to be divided.”

“What do you want? What would you like to see happen today? “

“What ideas do you have on how this dispute could resolve itself? [Then, to other side] Without responding to what they just said, give your own fresh answer to the same question.”

“This is the open discussion period where you ask each other questions, respond to what’s being said and fill in the information gaps.”

“It helps a lot if you show a little appreciation for anything good they say.”

“Everyone is doing the best they can to get their needs met. Each has their own set of needs and their own sense of what’s fair and right.”

“If you look out for their interests very likely they will look out for yours. “

“The art of compromise is the willingness to give up something in order to get something else in return. We’re looking for trades.”

“Instead of an outcome being imposed on you, you can help determine it and it may not come from law; it may come from goodwill.”

“You can “agree-to-disagree” on past facts and think about where they want to go from here.”

“I hear you taking responsibility for what you feel were some mistakes. That’s often given credit by the other party. In what form would you like credit?”

“What could you have done differently to help avoid what happened?”

“Let’s move to constructive problem solving. What more information from ___ would you like to have in hand as you begin creating steps toward a solution?”

“Rather than rehashing the past, let’s focus on the future where there haven’t yet been any problems.”

Brainstorming

“How about a little lighthearted fearless brainstorming? Blue sky. Playful. Everything from the obvious to the ridiculous.” [Can try in joint, but less tension in caucus]

“Let’s say we’ve gone through the circumstances enough. Let’s go on to something new. Where would we like to move to today and how are

we going to get there?”

“What are some of your thoughts about the best way to approach this situation?”

“The more options you discover in brainstorming, the more likely you’ll find ideas better than a simple compromise.”

“What makes brainstorming good is giving every idea a ‘green light’, even if wild. Build on ideas; we’ll evaluate later, not now.”

“Put aside your internal judge for a minute and let your internal creative nature come up with imaginative ideas.”

“I’d like to listen to any criticisms, but let’s put them off until we have thought up lots of alternative options.”

“We agreed to brainstorm and you’re starting to evaluate the ideas. Would you be willing to hold onto that for now?”

“Feel free to come up with anything, no matter how wacky or far-fetched, whether or not you’d ultimately agree with it. No ownerships yet.”

“Try thinking of things that have high benefit to the other party and little cost to you.”

“Whenever an idea is proposed, focus initially on its positives because they may be stepping stones to better ideas.”

“I like the way you said that. We’re making progress.”

“Okay, that’s really something. I think we can work with that.”

“It helps to start from where they are; not from where you are.”

“H/She proposed ____. What do you propose?”

“What are some of the ways we can expand the options?”

“You’ve heard proposed solutions that are quite different. Now I like each of you to think up a third solution that can help each of you get some of what you want.”

“Without worrying about capitulation, you can broaden the scope of negotiation by thinking up potential trades. It shows strength and confidence, not weakness.”

“Has anyone heard of an approach that helped solve a similar situation?”

“Let the other party save face. e.g. Kennedy promised Khrushcev he wouldn’t invade Cuba.”

“When someone asked to be made a baron, prime minister Disraeli: said: “You know I cannot give it to you, but you can tell your friends that I offered you one and you refused it. That’s much better.”

“What are some of the criteria we might use to evaluate potential solution ideas?”

“Here are some other ideas [with tone of no attachment] offered to keep the process going, not to tell you what to do or how you should decide.”

                        author

Dudley Braun

Dudley Braun started mediating 6 years ago with community mediation panels.  This work evolved into active mediation.  He has mediated hundreds of cases with institutions such as Contra Costa County's Superior Court's mediation panel.  He combines this with his first career and his extensive training and study, driven by fascination… MORE >

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