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Enhancing Communication

Quality mediation courses include communication skills that enable the mediator to more effectively draw out information, which is necessary, if the parties are to negotiate a settlement. After all, mediation is facilitated negotiation, and people cannot negotiate unless they provide one another with sufficient information.

Good mediators are well aware that open-ended questions are more likely to draw out information from the person responding. Open-ended questions incorporate the classic information triggers of who, what, where, when and how. Typical examples are: “Who participated in the discussion?”, “What factors were considered before making the decision to…?” and “How many former patients received the treatment?”

Of course closed-ended questions, although they reduce the amount of information provided by the person responding, have a benefit of politely cutting off a person who constantly repeats or the long-winded, pleonastic, individual. Typically, closed-ended questions incorporate is/are, did/do, or could/would, and trigger a monosyllabic response of only a “yes” or “no”.

There is a negative consequence associated with some open-ended questions, and those are the ones where a closed-ended term slips into the conversation. For example, “What could you do?”“Where did the document originate?” and “How did you arrive at that figure?” When the words like is/are, did/do or could/would get embedded in an open-ended question, many individuals will provide less information. This is especially true if these questions come during intake or early in the mediation session, when little trust has been generated in either the process or the mediator. Short answers will also result, if the responder is intentionally withholding information.

Hopefully, every mediation training pointed out the detrimental consequences of asking “why” questions. Questions that incorporate the word “why” place people on the psychological defensive. For example, “Why did you fire Mr. Smith?”  The responder to the question is far more likely to construct an answer that they think the mediator wants to hear, or to intentionally withhold potentially critical information.

Mediators can overcome inadvertently shutting down the flow of information among and between the parties, by simply initiating a little “word-smithing”. First, generate a list of open-ended questions prior to the mediation, and double check to be sure that a “close-ended” term is not included. Taking a few minutes to review the questions will enhance the probability that the question will draw out more useful information.

Second, instead of relying solely on open-ended questions to get information, use a “soft-command”. Tell and describe are two very useful words, because they do more than just get a person to respond—they demonstrate a mediator’s interest and help to build trust. These are two critical elements associated with getting people to talk and disclose more details. For example, by modifying the earlier question of “How did you arrive at that figure?” and turning it into a “soft-command”, “Describe all the factors you took into consideration to arrive at that figure.” The “command” is non-threatening, it conveys interest on the part of the mediator, and opening the door with the word “describe” subtly invites the person to provide more information.

Another example of a “soft-command” that can eliminate the challenges generated by the word “why,” illustrated above, is “Tell me all the elements that went into the decision to fire Mr. Smith.”  This “soft command” not only encourages the responder to provide more information and details, but also by directing that the information go to the mediator helps reduce the responder’s concerns of having to defend what he/she did.

Third, is to ask for help. People are more likely to respond positively to a request for help, and when this request is seeking information to assist the parties’ during their negotiation, mediations are more likely to result in a settlement. As an example, “Help me understand the pressures you were under at the time you made the decision.” Including “please” also increases the amount of information provided.

Fourth, and the most obvious change a mediator can make is the forever drop the word “why” from his/her vocabulary!


Nancy Neal Yeend

NANCY NEAL YEEND is an experienced, nationally recognized dispute management strategist and mediator. For over 40 years she has mediated civil cases, including real estate, construction, employment, intellectual property and related business issues, and served on trial and appellate panels. She has served as faculty at the National Judicial College… MORE

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