This article is the portion of the book, Milan Slama is currently working on. The title of the book is MEDIATION as a GAME of CONVERSATIONAL PRACTICE and the article is the shorter version of Chapter 4, contained in the section dedicated to the concept and the practice of conversation. The first section analyzes the relation between practice theory and mediation, and the last section will portrait mediation as a game, which combines strategic and collaborative approaches.
Questions and Questioning within the Conversational Framework
‘Question and answer’, as we learned in the previous chapter, is the adjacency pair included in many forms of talk. Mediators mostly focus on differences between open-ended and pointed questions, Yet, there is much more to questioning and question-asking than that. Question-asking and the art of questioning can be considered as one of the sub-practices of the conversational practice. Once we consider the relationship between questions and answers we can expand our inquiry. And we can go even further and make questioning and answering one of the important aspects of conversations taking place during the mediation process. We can go beyond the list of singular questions and think about the lines of questioning. We can distinguish between topical questions and process oriented (regulative) questions. And we can consider questioning-asking as a performance ‘art’ and as a framing activity. We start with distinguishing between question-asking and questioning and we can ask many interesting questions about questions. For example, do we need to consider the criteria to distinguish between good and bad questions, right of wrong questions, proper and inappropriate, or even stupid questions? Must we account for rhetorical questions or follow-up questions and their role and function in mediation? Does every question deserve an answer? Can we answer a question with question and what would be the impact on the direction and the flow of conversation? Do we need to have a closer look at questioning oneself, questioning others, and questioning the institutions, which are in the background and the foreground of many mediations? We can recall our example, where two institutions, Courts and the small business, intersect. Questioning oneself can be understood as a self-doubt and the lack of confidence. Questioning institutions comes down to trust or distrust attached to certain establishments, such as governmental entities or private sector entities. Many parties in mediation often express their frustration (sometimes undeserved and occasionally merited) and the lack of trust and confidence regarding the courts and the legal profession in general.
The methods of questioning can differ from one domain to another. Different approaches are used when it comes to workplace interview, polling, psychological testing, interrogation, cross-examination during the trial proceeding, and mediation. Philosophers and theologians ask different questions than the shoppers in the convenience store, asking about the quality and the functioning of a product (vacuum cleaner) they are ready to purchase. There are many different motivations related to question asking. Curiosity, inquiry, prying, the quest for knowledge, probing, assurance, concern for others (“Are you OK?”), and so forth. We can also discriminate among many different purposes when it comes to question-asking. It might be a good starting point to demonstrate a wide variety of purposes. Here is a short list.
For mediators following questions about questions might be important.
A while ago, I had a conversation with my comediator about the propriety of asking questions about party’s bi-polar disorder. My comediator had a background in psychotherapy and her preference was not to ask the party about presumed mental illness. She found the issue too sensitive. Inquiring about mental illness would be for her too intrusive. The information about the bi-polar disorder was included in the party’s court case documentation. It was not obvious if the diagnosis was confirmed by a proper authority and it was not clear if the party was aware of being diagnosed with the disorder. Learning about the party’s mental health history, about the diagnosis and treatment would be helpful to comediators, who were attempting to negotiate the visitation plan between the parents, regarding their two children. Th competency (or incompetency) to coparent is a major issue for family and dependency courts and it is quite important for mediators to ‘calculate’ this type of information into the negotiation strategies.
Two issues arise from this example. First, what risks are mediators willing to take and second, how are they going to approach any sensitive matter, when it comes to asking questioning and eliciting answers from the parties without encroaching on their privacy, offending their sensibilities, or prying on their secrets. Any such violations and insensitivities are opportunities to derail the process of mediation. Parties might be deeply ashamed of a particular medical or psychological condition or they might be uncomfortable talking about wrong-doings they perpetrated in the past. Prompting parties to disclosure a highly sensitive or compromising information in front of others might be like stepping into the minefield.
So, my comediator made a decision to avoid the question about the bi-polar disorder, not willing to take the risk and therefore not willing to ‘mediate dangerously’. Such decision must be respected, because every mediator might have a different tolerance for risk-taking at different stages of their careers, based on different levels of experience with different types of issues.
Question-asking can be done in a direct or indirect fashion. Following is the templet of a conversation, where the indirect approach to questioning can yield a result without making the party offended, uncomfortable, embarrassed, or resistant.
M(ediator): So, I understand, that you are having an individual therapy, which was recommended by the judge. Is the information I have correct?
P(arty): Yes, it is.
M: Is it Ok, if I ask you the question related to your experiences in the past? You do not have to worry. I am not allowed to ask anything about what happened during your therapy sessions. You are protected by psychotherapist-patient privilege.
M: Thank you. So, could you please tell me if you took any medication in the past related to any mental-health issues? You do not have to give any specific answer. Actually, you do not have to give any answer all together, if you wish. The reason I am asking is, if the condition is successfully controlled by the medication, a person might have a better chance to get the shared custody of his or her children.
Let us have a closer look at this segment of conversation between the party (parent) and the mediator which takes place during a family/divorce or dependency type of mediation. The issues at stake are the custody of young children and parenting competency, evaluated by the Court representatives in the position of authority.
Let us compare the indirect questioning with a direct question, my comediator did not want to ask.
M: Were you diagnosed with the bi-polar disorder in the past?
Following are a couple of possible answers by the party.
All three answers are the examples, which my comediator did not want to seemingly deal with.
The first one is the polite way to say that the question is inappropriate. The second answer
suggests, that the party perceives the mediator as someone who violates her boundary of privacy. It is a bad question to ask this particular parent. The third question is answered with the question. The party questions the intent of mediator’s question and considers the question to be offensive. In the mind of the recipient, the question is not just a bad one, but the stupid one. The party’s question is the judgment about mediator’s ability to conduct the mediation.
Two more things need to be considered. The party might be afraid that if she does not answer the direct question, it could have negative consequences, therefore she might decide to answer. Being conceivably a submissive type, the party might perceive the mediator as a person of a certain status, power, and authority. Here, habituated obeyance and conformity might play a role. Under such circumstances, the mediator should assess the level of disempowerment the party feels and to encourage (empower) that party to feel free acting and responding the way she wishes to, without being afraid of repercussions. The mediator can encourage the party to partner with her or him, stating following or similar words. “There is no pressure to answer this question. You do everything on your own volition and I am obligated to respect that.”
The other thing which needs to be considered, when a question is asked, is a particular situation, unique circumstances, and the institutional framework. If the same question was asked by a nurse during a regular intake interview, question would not be considered bad, inappropriate, and for sure not a stupid one. Therefore, criteria for evaluating questions must be sensitive to different types of situational and institutional framings. As mediators, we need to appreciate how the capacity to conduct mediation, when it comes to propriety, autonomy, self-determination, politeness, and discretion, is manifested. This capacity coincides with the multiple forms of talk, with the ‘art’ of conversation, and conversational practice in general. And yet, confrontational types of conversation remind us that we cannot afford to lose control, when the parties and other participants use a variety of tactics to insult us, to intimidate us, to discredit us, or to overpower us. The balance of power or the equalization of playing field does not apply only to combating parties, but also to parties and mediators.
What we can learn from the example is that the questions can be utilized by mediators in three different ways. They can be suggested as the list of possible questions, as the line of questioning designed or applied spontaneously, and as being imbedded (therefore being incorporated into a bigger unit) into conversations, just as stories are.
The question-asking, direct or indirect, is about learning, understanding, connecting with others. Yet, as we could detect, questioning has quite a different meaning. Questioning one-self, questioning others, and institutions points to another, quite distinct matter. It tells us about trusting or distrust, having confidence or lacking it, being comfortable (at ease) or feeling insecure. All these descriptions point to the ways we relate to each other and to ourselves. All these descriptions are important, when it comes to tensions we have withing (internal conflicts) and discords with others (external conflicts). If we feel self-doubt and we do not trust ourselves, if we suffer the lack of confidence, if we do not perform competently, we are prompted to look at ourselves with a critical eye, asking, what it is we need to improve to become more skillful practitioners. If we question other persons’ motives, intentions, and attitudes, we address the issue of distrust. It can be nothing but being cautious and careful, it can be a deep suspicion, but it also can be pathological, paranoid state of mind. Distrust can be warranted or unwarranted, and it can manifest itself to the smaller or to the greater degree. What it shows us is the need to trust, rely, and occasionally depend on others and it shows us how often we become disappointed in others and how often we question their loyalty. Occasionally we fear them, we feel betrayed or wronged. Others might not have confidence in us. They might not trust us, questioning our competency (as practicing mediators) or they might not trust, that we have their best interests in mind, that we are not concerned with their problems and issues, or, simply that we just do not care. Trust and distrust are in the heart of any conflict and any relationship.
Just as question-asking, questioning also can be direct or indirect, expressed openly or pondered in silence.
It is not unusual, that the party in mediation might wonder or be puzzled by the questions or pronouncements mediators or other participants make.
Thinking to oneself, one can ask himself or herself, “Why is he asking me such a question?”, “Where is he going with this?”, “What is she trying to pull here?”
Directing the question to mediator, the party might ask aloud, “Why are you asking me this question?” And if the party does not want to challenge the mediator, she might ask for a consultation with her representative and ask in the private conversation, “What do you thing, why did he ask me that question and what is he trying to say?”
Trust can be destroyed in an instance. Restoring and rebuilding trust can take years. Mediators have a double task on their hands. They must gain parties’ and participants’ trust in mediation process and at the same time, they must demonstrate their ability to allow parties to trust each other enough, so that they would be willing to cooperate and agree on many aspects of mediation process and the issues at hand. Being trusted is as important as the outcome of mediation. Actually, the outcome of mediation often depends on trust invested in mediation process, in an individual mediator, and in the institutional setting. Not always these three layers of trust come together. Parties might be comfortable with a mediator on a personal level (liking her), not knowing anything about mediation process. They might have a good previous experience with mediation, but they do not trust the organization they work for. They might think that the mediator is incompetent or untrustworthy, regardless what they think about the workplace or the mediation process.
Sometimes mediation can be a matter of life and death, literally.
In the past, I had the opportunity to mediate the wrongful death case between the police union representatives and the Hispanic family which lost their son during the incident described as a reckless, unjustified police shooting. Another case was between the business owner and the young boy. The situation was portrayed as an accidental shooting between two people who befriended each other. The owner of the convenience store was not aware, that the young boy, who visited him on many occasions, was inside of the storehouse. The business owner got startled and believing that his store was being robbed, he pulled out the gun and shot the boy. The aggrieved family sued the owner.
On both occasions, the atmosphere was extremely tense. Specifically, in the first case, I sensed the tension I did not experience before. The parties were separated and were residing in different rooms. All eyes were on me. Every word and every move of my body was scrutinized. The expression on the faces of the family members as well as the police representatives was quite similar on both sides. The expression spelled out following questions.
There is something what cannot be easily taught, which is the ability to connect with people during the most excruciating and trying times of their lives. The death of a child and the career (livelihood) of a policeman are the stakes. They all want to believe in justice and fairness, while being afraid that injustice will be upon them. They want to trust the ‘system’ or they might believe that the system might favor them or the odds are against them. Therefore, the mediator is an individual who invites trust and is the ‘face’ of the system which he represents in the eyes of the parties.
Other issues related to questions
There are occasions when the parties avoid answering question, just as they often avoid conflict and avoid the people, they consider ‘the cause’ of their misery. Coming to the table, facing the adversary or the enemy (real or perceived), looking into his or her eyes, is not what many prefer to do. Not everyone is comfortable with confronting others or being confronted by others. And even if mediation takes place, many times the preference is to mediate separately, caucusing, rather than being in each other’s presence.
The questions are avoided for many reasons. One can think that a ‘trick’ question is asked to compromise, embarrass, or to discredit a person. Not answering questions (for example, during the press conference) might be the way out and to protect oneself or others. Believing that the question is stupid or offensive, person might respond, that she is not going to honor such question with an answer. (It’s beneath her.) Some questions can be considered traps or provocations and must be avoided for any cost.
For mediators avoiding questions poses multiple challenges. The first one has to do with the efficiency of mediation, or with the time limit imposed on mediation. Avoiding questions and sometimes the whole topic the parties want to talk about, is strategically called bypass.
(P)arty: I am telling you as I told you already a couple of times, he was not delivering on his promises. Maybe I did not tell you about this particular occasion, but he came home late again, coming up with the stupidest excuse you would ever hear. He told me that his colleague, you know which one I am talking about, the one he sleeps with, accidentally spilled the glue on his pants, and he had to run into multiple stores to get the new pair of pants. I am looking at him in complete disbelieve, because he wears the pants, I bought him a while ago.
(M)ediator: I am guessing, that had to be quite difficult to swallow… (a short pause follows, to bypass the repeated topic and to redirect the conversation) … Do I remember correctly, that a while ago you were considering to exchange your every other Sunday visitation with your son for Christmas and Thanksgiving holidays?
P: Yes, but I did not finish the story I was telling you. Can I continue!?
M: I appreciate you telling me about it and seems like your husband was lying to you again and again and he did not stick to his promise to be on time and helping with your daughter’s homework. He seems to promise something and the next they he does exact opposite.
P: You are damn right!
M: I can very much sympathize with you. Promises are very important also to me. But I need to apologize to you, at least for now. We had such a great momentum, when we negotiated the weekend schedule, that I would not like to miss the opportunity to get an agreement on this specific matter. Your husband was willing to take your suggestion, so it looks like you both agree at least on this issue.
The bypass is not appropriate on many occasions. There are times when listening to stories about deep hurt, ongoing distress, disappointments, or the good times in the past must be heard, even if the efficiency and the speed of the mediation might be presumably lessened.
Our example can be instructive to illustrate the bypass. The mediator already heard multiple exemplifications of the promise violation, and she does not believe that one more story is going to add anything new. The mediator is trying to be sensible and without immediately cutting the party off, (“You already were speaking about this topic many times before.”) she is trying to refocus on negotiations. The question, which is meant also as a request, “Can I continue!?” is followed by the validation of the party. Wife’s emotional distress is acknowledged by the mediator, emphasizing the importance of promise-making. Yet, at the next exchange, the mediator redirects the conversation toward a pragmatic issue related to the visitation schedule, trying to bypass the topic and hoping that it will not come back any soon.
There are other examples when question might be bypassed or not responded to by the mediator.
A while ago I mediated the workplace dispute, where the stakes were quite high. The employee used the internal email system, exchanging explicit pictures with the coworker he was intimately involved with. The employer decided to terminate the male employee, while the employee believed that the termination was not warranted. He hired an attorney to defend him, claiming wrongful discharge.
After caucusing with both sides, it became quickly apparent that the attorney and his client did not spend too much time together talking about the case. It was also obvious, that the employee did not tell his attorney very much about the incriminating evidence, perhaps hoping that the other side (the employer) is not in possession of the questionable material.
His attorney was probing and trying to determine if there is an evidence detrimental to his client and if I was aware of such evidence. I could not and did not want to disclose my knowledge about the evidence related to the employee’s misconduct, because the opposing side instructed me not to disclose that information. More than that, I did not want to embarrass the client in front of his attorney and in front of another (female) participant in mediation, who was there to explain certain internal policies related to the workplace. I also did not want to embarrass the attorney, who was obligated to know enough about the case prior to mediation. The familiar issue of face-saving and embarrassment had to be dealt with.
So, I deflected the employee attorney’s effort to find out about the evidence, he needed to know about, by avoiding his questions. There were different direct and indirect (clever) attempts by the employee’s attorney to get the information out of me. I could of cause relay on the instructions not to disclose the information given to me by the attorney representing the employer. But I did not want to do so, because, I wanted the employee to come clean in the private conversation with his lawyer. Therefore, instead of answering or disclosing anything what I knew about the evidence, I avoided disclosure by making a following suggestion. First, I explained that I am not the right person to present and evaluate the nature and quality of evidence, because that is not want mediators do. Therefore, I recommended to the attorney and his client to spend the time together and have a conversation about what kind of incriminating pictures the opposing side might or might not have in their possession. Not only I avoided a potential embarrassment, which was looming inside of the room. I maintained decorum and applied discretion. At the same time, I protected the information and I subscribed to the principles of mediation, not to disregard and to violate the instructions related to evidence, requested by the employer.
To summarize, just as parties, mediators can and sometimes must avoid to answer questions, if those answer might violate the principles and/or efficiency of mediation process.
The manner of Question-asking
We already said a few things about the manner of questioning, suggesting a difference between direct and indirect way of asking. In the previous chapter we also indicated that questions and answers belong to the conversational practice, taking the form of so-called adjacency pairs, introduced and offered by the Conversation analysis in the previous chapter. We distinguished between dialogue and debate, which might present a different manner to ask questions, considering more or less cooperative and/or competitive approaches to conversations. The difference can be illustrated by the following examples.
DEBATE: Does my opponent truly believe such nonsense?
DIALOGUE: Would you be willing to consider a suggestion proposed by the opposing party?
Different types of questions offer different manner of question-asking, with different purposes in the mind of a person who does the asking.
In English language, so-called WH questions (what, when, where, which, who, and why), play the distinct role. With the exception of ‘why’ qualifier, all WH-questions look for a specific information regarding persons, places, time, options, categories, or specific items. They might be pre-framed with a conditional qualifier ‘if’.
“If you had the opportunity to choose, which of those two options would you prefer?”
The manner of question-asking is important at different stages of mediation. The last example, illustrates how the question can be asked during the negotiation stage. It would be quite different, if a mediator would ask, “Do you have a capacity to decide which of these two options is good for you?” And while it might be quite obvious to our readers, what in this situation
is the proper manner (right or wrong way), it is good to remember, that even the smallest and most subtle ways of delivery and phrasing, when it comes to question-asking, can yield unexpected or undesirable responses from the parties. Recently, I was challenged by the party, with the question, “Do you understand the meaning of the word ‘understand’!?”, in a quite antagonistic, aggressive manner. Whichever way I was trying to answer this question, the party was not satisfied. If I claimed that I understand the meaning, he would immediately retort, that I do not understand. When I asked him to explain what it is, I don’t understand, he responded that he is the one who is asking the questions. If I stated, that I do not understand, his response was, that I don’t do my job well. He was trying to impose on me a double-bind (trapping me with the lose/lose proposition). It reminded me, how an unpleasant, aggressive, or silly questions can derail conversation. It also reminded me that we mediators are active inquirers and the recipients of questions once we engage in conversations with the parties. Therefore, the ‘art’ of question-asking and answering is the ‘art’ of conducting conversations.
As we mentioned before we ask question with different purposes and ends. One of the important purposes during mediation, is ‘reality check’. The party might not have a sufficient knowledge or information about the mediation process and about substantive matters related to negotiations. The party might be quite unrealistic (or even delusional) about what the opposing party would be willing to accept or to agree to. On such occasions, situation on the ground is replaced by the wishful thinking. Typically, we use questions starting with the qualifier ‘why’, helping people to understand what do they need to realistically consider, when they evaluate possible options and solutions. Question ‘why’ offers multiple purposes. It asks about distinct intentions, motivations, and reasons behind or prior to specific actions. It provides justifications but also explanations for the events which already occurred or are taking place. Explaining oneself to others and to explain why one behaves certain way occur quite frequently during mediation. Here are some examples.
As usually, there are multiple ways how to answer similar questions. The mediator might respond, “I will try to give the best explanation I came up with and let’s see if it’s going to make any sense to you.”, or, “Sure, but before I answer, would it be ok if you let me know what you believe the explanation (reasons, motives) might be?” Or, “Let me say a few things how this all typically works.” The bottom line is that ‘why’ questions provide mediator with the opportunity to convince and hopefully correct party’s beliefs about what is ‘really’ going on. What is possible and what is impossible, what can be done and what is unrealistic to expect. ‘Why’ questions are about challenging and confronting (without being confrontational) someone’s more-less realistic views, believes, or opinions as they pertain to issues relevant to a specific dispute or conflict.
The manner of asking ‘why’ questions is as important as the answers to that type of questions, asked by the parties. We ask questions to get answers. If we do not succeed, we must ponder why our questions were not answered.
The manner of asking leads to another important type of question, the ‘how’ question. These types of questions are about how we do or should do things (the right, correct, unacceptable or wrong, improper) way. Therefore, ‘how’ questions are performance guided, practice related questions. They are also inquiries about the state of affairs. (“How is your mom?”, or “How is it possible, that …?”)
We could say a few things about other types of questions, the questions which start with the qualifiers ‘can’, or ‘do’, ‘did’, or ‘will’. We could distinguish those question from those which use so-called modal verbs, ‘would’, ‘should’, or ‘could’. Yet, it might be a good exercise for our readers to reflect on those types of questions, to realize what they typically do, when they ask them. Some examples may be helpful to initiate such reflection.
One of the questions about questions might be, when it is better, more appropriate, or more beneficial to use the qualifier ‘could’ rather than the qualifier ‘can’?
Finishing this chapter on question-asking and questioning, it is good for us mediators to remind ourselves, that to become accomplished conversational practitioners, we need to learn how to ask right, good, smart, and useful questions. But also, that we need to learn how to answer the questions to the satisfaction of other participants in mediation.
Specific questions invite the multitude of answers, or no answers at all. Being prepared for a variety of questions and answers, spells out the competency and the ability to control, orchestrate, and coordinate the conversational flow. This flow, as we learned in the previous chapter, manifests certain structure, but also it shows certain volatility, indeterminacy, and occasionally, it can surprise us with something quite unexpected. Being prepared for the unexpected almost sounds like a contradiction in terms, and yet, those are the moments when mediators’ creative abilities, flair, and improvisational skills come to full force.
Later we will contend with the issues of indeterminacy and control of conversational flow in a greater detail. Next, we will take on the issues of voicing and silence as they relate to mediation in general and to the conversational practice in particular.
1. See, Kenneth Cloke, MEDIATING DANGEROUSLY: The Frontiers of Conflict Resolution, Jossey Bass, 2001
2. A good example of the list of questions can be found in the book, written by and Joan Goldsmith and Kenneth Cloke, RESOLVING CONFLICTS AT WORK, Jossey and Bass, 2000 & 2005, pp. 163-164. The coauthors write:
The easiest way to separate positions from interests in your conflict is to ask your opponent why he or she has taken a given position. Here are some additional questions you can ask to elicit your opponent’s interests or reveal your own:
“Why does that seem like the best solution to you?”
“If you could have any solution, what would you want?”
“What concerns do you have about this?”
“What is a real problem here …?
“What would be wrong with …?”
“Why not do it this way …?”
“What are you afraid would happen if we …?”