Mediation Keys to Mediator Success: Gathering Information

Preface

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.

How to Use This Collection

From this random-order collection of expressions presented one right after another, simply select and use any seemingly helpful expression wherever they are appropriate. Types of situations are roughly categorized into Sections denoted by an underlined subtitle. Some expressions may strike a chord of usefulness more than others. Slide the reading eye down past the ones that don’t click, hunting for the ones that do. Since there are so many expressions and since some convey the same idea with different wording, a personal working set might be selected for easy access and remembrance by highlighting or extracting favorites. [Words in these brackets] are editorial asides for the reader, such as [When a hard position is stated] then “…..”

Gathering Information – Claims & Positions

Before we start, I’d like to check on how well each of you understand the other’s point of view. So in your own words, ______, please tell us ______’s point of view.” [Then: “How well does that express your POV? Any changes or additions?”]

“We want to have a discussion as fully informed as possible.”

“I’m going to ask each of you to listen carefully while the other party explains the essence of the dispute to me. Let them have their say without interruption. Agreed? I’ll ask clarifying questions. Try to distill it down to what you want and what is the factual and legal basis for your claim. Okay?”

“To conserve your time, I’m going to ask you to summarize your perspective concisely and get us to the heart of the matter.”

“Could you please summarize the story from your viewpoint? Please tell me (briefly) what lead to this meeting?”

“How much is your claim?” [answer] “How did you arrive at that figure?”

“What are the main aspects of the claim? What problems do you want to solve?”

“What’s the rationale for the claim?”

“What is the factual or legal basis for your claim?”

“What have you got to go on? What sorts of writings support the claim?”

“What have you got to back it up?”

“As they say in the legal system: “The faintest writing beats the best memory.”

“Don’t be discouraged as you listen to the other side or as they listen to you. Absolute truth is often an illusion because it’s the first victim of a conflict.”

“Do you have any more or stronger supporting statements?”

“Why should we believe that __________?”

“A court looks for a “preponderance of evidence” and then whether the evidence is “clear and convincing”. Tell us what you’ve got.”

“What documentation is there to justify ______?”

“What evidence is there that adds legitimacy to your assertions?”

“How are you going to meet certain burdens of proof?”

“Do you have any concerns, based on what you’ve seen and heard that you could sustain your burden of proof?”

“How does the situation look to you?”

“What is this dispute getting in the way of?”

“A commonly accepted test for evidence is: What would an unbiased critical person be likely to accept?”

“Is it okay with you that we pause here and hear from _______.” “Is there any more information you want from the other side?” “If you took this to court, what would you realistically expect?” “How sure are you what the court would decide?”

“What do you think would help solve this problem?”

“What is it about what you just heard that creates a problem for you?”

“[To second party] This is your opportunity to express what you want to express; you don’t have to react right now to what you heard.”

“Dogmatic repetition of demands may wear down and drive away a target, but it’s not a sure-fire way to persuade.”

“ [When they ramble and stray, interrupt and say:] I heard you say (summarize) and you were telling me about ___. Can you tell me more about (main issue)?”

“When people keep looking backward it’s hard to look forward.”

“The story of the past is good for one complete run through, and it’s a tempting refuge; but it can be a prison.”

“Instead of looking backward, at some point you’re best served by breaking out and focusing on taking charge of what’s within your control now.”

“We can either stay stuck in the story of the past or be open to creative thinking about how to get to a better future.”

“I understand your pain, anguish, and frustration. Let me know when you’re ready to face the issues and look forward to a better time for yourself.”

Probing for Interests, Needs, Concerns, etc.

Beside the money, what else would you like?” “What would you like to see happen?” “What are your expectations?”

“Help us understand how this has impacted your life.”

“What would be the ideal outcome? What would work best for you?”

“What interests would be served if you got some or all of your aspirations? Name some more.”

“How do you want things to be different? Better? Improved?” “What are the important things you want from this meeting?” “When you go home tonight, what would you like to have accomplished?” “What is the problem that your position solves for you?” “What are your goals in negotiating for that position?” “How does that position help you?” “What are the consequences of not having ____?”

“What do you want to get out of this? Don’t give me a number yet; just tell what other needs go with this situation.”

“In what ways will their position hinder what you’re trying to accomplish?”

“What will relief or resolution allow you to do?”

“Beside the money, what other interests or concerns do you have?”

“What are the values associated with __________ (object) or (action)?”

“Beside the hard facts, what assumptions, beliefs and interpretations are at work to get from the facts to the conclusions? How do any of these hinder a solution?”

“What background feeling goes with what you’re saying?” “Why do you feel ________ (or) that way? “ “What leads you to say that?” “What’s behind that statement?”

“Now I’d like to learn why you state a position that way.” “What is meant by that?” “Talk about your reasoning on __________” “Just so I have a more complete picture, please tell me ____” “Would you like to add anything further? Anything else?” “What else do you want to mention?”

“Is there anything you’d like to add?” “Have I missed anything?” “Would you say more about that?” “Would you mind expanding on that a bit?” “Why is _____ important to you?”

“Is that an okay spot to stop for now?”

                        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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