DrillDown-A Mediator Shares His Technique

The term “drilldown” graphically describes the process of dividing an information area up into finer and finer layers in a hierarchy with the purpose of narrowing in on one small area or item.

What is a “drilldown”?

As currently used in information technology, to drill down (verb) is to focus in on something. A drilldown (noun) is the act of focusing in. The term is sometimes used when referring to moving down through a hierarchy of folders and files in a file system like that of Windows. It may also mean clicking through a series of dropdown menus in a graphical user interface.

In a particularly intransigent mediation a technique a mediator may consider using is a method I call “drilldown.” The graphic term “drilldown” affords a visual concept of the technique. In a mediation the joint session is when the facts and issues emerge. In the caucuses the parties’ motivations to settle emerge. Thus, it is in these two phases of mediation, that drilldown is an effective tool for the mediator.

In the Joint Session and in its most basic sense, a drilldown is asking probing and even more probing questions of the intransigent party. If both parties are intransigent, then drilldown is applied to both parties. So a mediator asks questions, even probing questions, of what importance is it other than for fact finding and determining settlement motivation?

Keep in mind that the focus here is the intransigent mediation… things are not going well. As the mediator begins the introduction he or she senses rigidity in the attitudes of both parties. The mediator notices that his or her well-modulated golden-throated voice is not relaxing the parties.

Allow me to describe a mediation in which drilldown was used to allow me to understand the dispute, unearth the settlement motivations and assist the disputing parties to reach a settlement agreement.

Imagine a dispute involving an encroaching fence. Two contiguous parcels of land share a lot line extending several hundred feet. The Plaintiff, hereinafter “P”, owns an income producing property on which there are multiple commercial units. P’s property is at the end of a block and has public streets on three sides. The building is sited on the property so that it faces the side of the lot I will describe as the bottom of a squared U. At the top of the U the shared lot line runs from top to top of the U. Visualize, if you will, the property owned by the Defendant, hereinafter “D”, as a rectangle which extends above the top of the U with D’s property area being approximately 75% the area of P’s property. For many years P has used the back of his property (the top portion of the U) for patron parking spaces. This area was not paved and was merely a dirt parking area. The area was sufficient to park 40 to 50 cars and trucks. When D purchased his property it was an unimproved lot zoned for multi-family residential use. After purchasing the property, D obtained the required building permits from the appropriate local agency and constructed multiple residential units on the property. D’s property was large enough that he provided entry and exit automobile access to both streets. Each residential unit was built with its own two-car garage.

After passing his final building inspection and thus obtaining his occupancy permit, D and his family moved into one of the residences and leased the others. It became apparent that the view of cars in P’s parking lot was not particularly attractive and that a fence should be erected to create a visual barrier and to prevent D’s tenant’s children from roaming into the parking lot. D then goes to the appropriate City officials and obtains a permit to construct a fence along the shared lot line. D then constructs a sturdy, attractive fence. D paints the fence white. D’s tenants are pleased at the added visual and safety improvement.

P visits his commercial property once a month on the first of the month to collect rents. P observes the fence and examines it carefully. P concludes that the fence is encroaching onto his property by seven feet, marks the location where he believes the lot line to be and so advises D. Surprised at the information D agrees to move the fence as no encroachment was intended and asks the City to show him the proper lot line location and where to move the fence. The City representative identifies the lot line at a point that would reflect a six-foot encroachment, not a seven foot encroachment. At D’s sole expense the fence is moved to the line marked by the City official, not to the mark made by P. Thus, D has moved the fence six feet, not seven to accord with P’s belief regarding the location of the lot line. When P visits his tenants to collect the next month’s rents he examines the fence in its new location. P notices the mark that he made and another mark that corresponds with the new location of the fence. P contacts D and informs D that the fence is still encroaching on his property. D explains how he arrived at the proper location for the fence. Thus, we have the basis for the lawsuit.

Recognizing that his opinion concerning the lot location is not sufficient in a court of Law, P hires a licensed, bonded surveyor to locate and mark the correct lot line. When the surveyor is finished he marks the correct lot line at the midpoint between the six and seven foot marks already in place. Thus, the fence is encroaching onto P’s property by six inches. Both P and D have photos of these three marks. P requests D move the fence again. D declines to move the fence again. P files suit and the Judge refers the case to me for mediation.

P’s complaint asks the Court to order D to remove the encroaching fence, asks the Court to award P damages in an amount equal to the surveyor’s fee that P paid for the survey and costs.

During the joint session D offers to pay half of the cost of the surveyor’s fee but does not want to move the fence. P is intransigent and wants the fence moved or at a minimum wants the fence taken down by D, wants to be reimbursed the full cost of the surveyor’s fee and wants his Court costs.

At this point as mediator I moved the mediation into the caucus stage.

In caucusing with P, I identified his interests as 1. Money… the full cost of the surveyor’s fee and 2. Eliminating the encroachment because he has plans to sell the property.

In caucusing with D, I identified his interests as not wanting to move the fence again. It had been a very expensive fence to build and to move it the cost had been about 60% of the original construction cost. He would rather pay something to resolve the case, but he was willing to battle it out in Court if he had to do so.

Allow me to pause here to answer a question you may have. The question is, “How did the mediator elicit all of this information in the joint session and two caucuses with each party? The answer to that question is to go against the normal mediation downstream flow of asking open-ended questions. The drilldown technique involves asking very specific, closed end questions. Underlying my specific questions is the attitude I display to the parties; i.e. this is not a question of right and wrong, it is a question of obtaining the facts. For those who remember the starring role in the Dragnet radio and television series, Joe Friday, you will remember his mantra, “Just the facts, Ma’am, just the facts.”

After caucusing with each of the parties twice, I sensed a swift agreement could be reached and I brought them back into a joint session. I thanked the parties for being forthright with me both in the first joint session and the caucuses. Knowing that P and D had multiple pictures of the fence I asked P to look at one of his photographs of the fence. P selected one of the photos and said, “I’m looking at it.” I asked the closed end question, “Is it a nice fence?” P replied, “It’s a very nice looking fence.” Turning to D I asked, “Would you be willing to pay P the surveyor’s fee and give the fence to P if he agreed to maintain it in place?” Surprised, D replied, “Yes.” Turning to P I asked, “If D gives you the cost of the surveyor’s fee and the fence would you agree to maintain it in place and waive Court costs?” Surprised, P replied, “Yes.” “Gentlemen,” I said, “You have an agreement… would you like to write it up.” The parties completed the form required by the Court, signed the form and I walked with them to the Courtroom where the Judge reviewed the settlement agreement, verified with the parties that the signatures on the form were theirs and that they understood the terms of the agreement as… The parties confirmed the settlement agreement in its entirety and the Judge made it an Order of the Court.

Thus, the essence of drilldown is asking closed end questions to determine the facts, asking closed end questions to determine the interests of the disputing parties and bluntly presenting the parties with a resolution to their dispute that they, with their tunnel vision, are not able to see.

Acknowledgement

The author wishes to acknowledge Mike Stalsby for his comments and suggestions as a reviewer of this article. Mr. Stalsby is a Real Estate agent who works in La Jolla, California. Mr. Stalsby is my tireless reader. I am totally blind.

                       

Joseph Dean Klatt

Joseph Dean Klatt was born the oldest of four children in Fond du lac, Wisconsin.  After graduation from La Jolla High School, Dr. Klatt lost his eyesight in a freak auto accident in 1967 at age 19.  He has since become a father to two sons, Joseph Franklin Klatt and… MORE >