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The First Question

 The first mediation meeting primarily revolves around getting to know your clients, and the clients getting to know you. It also involves building trust. For mediation to work, your clients need to trust you to be fair, intelligent, competent, and able to understand their challenges. 

Part of the first meeting, from the mediator’s point of view, consists of a factfinding session. You need to find out about the makeup of their families, including any pertinent family history, and information about their children regarding their ages and stages of life. Are there adult children that are financially independent or have they yet to launch? Are there any family trusts? Are there family businesses? Are either of the parties engaged in their own business? These are all very important questions (among many others) for mediation – whether it’s divorce mediation or prenuptial agreement mediation. 

As you ask questions and get responses from the clients, you can assess the dynamics of their relationship. At the same time, they are assessing you. Are your questions appropriate? If they seem uncomfortable about a question, you may want to explain its purpose. Are you being neutral? Using an impartial method of asking questions and giving balanced responses, hopefully will allow your clients to start to connect with you as a neutral, unbiased factfinder. 

Because this factfinding process has so much value in the first meeting, I do not provide clients with a pre-meeting questionnaire to fill out. Even though these may have some value (and many mediators use them), I believe the downsides of using them outweighs their usefulness. Written questionnaires have the danger of short-circuiting the initial discussion. They limit the process of getting to know and trust each other. This process takes time and there is no real substitution for face-to-face (real-time or Zoom) interactions. 

The second problem with using questionnaires is that invariably there will be at least one (and often more than one) important fact or some other element that is revealed when actually talking with clients that would not be revealed through the use of a written questionnaire. This missed information could be crucial to the success and soundness of the entire mediation. 

Having said this, I often ask the clients to upload some financial information prior to the first meeting – e.g. a couple of years of tax returns as well as some bank or investment account statements. They serve as a starting point for me to have a better understanding of their financial situation. This information allows me to begin my interview more discerningly at that first meeting. (The rest of the financial documents can come later, as we work together.) 

In every meeting subsequent to the first meeting, I ask the same first question, “What have you been thinking since our last meeting?” 

Afterwards, there’s usually a moment of surprised silence. After the silence, I usually prefer having the more reserved or quiet of the clients voice their responses first. The responses are generally very honest, unprepared, and consist of the most important thing the client has been thinking or worrying about since the last session. They have been ruminating between the sessions. (I have, too — see below.) What they reveal in their answers to that question is invariably tremendously helpful “raw” material. It is potent, because it is fresh, and not altered by preparation. They have, indeed, been thinking a lot, and have much to say. 

Their answers are material to the issues of the mediation. They invariably aid me enormously in my work in helping my clients solve the financial puzzles of their mediation, whether the topic is the termination of a marriage, or entering a marriage. 

Another important advantage of “the first question” is the potential for couples to be surprised by the content of their partner’s response. This can provide fresh perspectives that can help to move the process forward, whatever the topic of the mediation. This is like those rare moments in a long-term marriage when your partner recounts something about their past that you had never heard about in your 30 years of marriage. In the mediation context, this new information is powerful, because it’s not a rote rehashing of things already known by each of the spouses (or future spouses). 

Once I’ve elicited my clients’ answers to that first question, I frequently take the opportunity to share my thoughts on their situation, reflecting on the ideas that I may have been mulling around since we last met. But I do this only if I feel it will move the mediation forward in a constructive way. 

As a third-party neutral reacting to what they have shared, what I might say can be very helpful to my clients. It can give them an additional perspective. It can literally change part of their way of looking at things, because words from a neutral can be very powerful. So you need to be careful. It’s important to be honest in what you might say to clients, while carefully choosing what to say (and what not to share with your clients). 

We are outsiders to our clients’ lives. We want to hear what they say first, because it’s their lives, and they know what’s important to them. They lead us by expressing their preferences and inclinations (i.e., what’s very important to them). It gives us hints toward solutions that might work for them. Our thoughts might be based on faulty assumptions and our own personal histories and biases. That’s the danger of sharing what your thoughts have been since the last session. We need to be very careful. 

But sharing our thoughts is something we should and must do. We are experienced professionals who have dealt with many other couples in situations similar to theirs and our information can be enormously helpful to our clients. How much we use our thoughts to guide them depends on the clients, the situation at hand and the mediator’s style. The ultimate aim is to help our clients sort out the pieces of the puzzle to find a solution and help create a plan for their divorce or prenuptial agreement. The three of us (mediator and clients) do that collaboratively with the goal of forming an effective working partnership. 

But there’s something else. 

Before that first question “What have you been thinking?” I usually begin the second meeting with a different question: “What do you think my first question to you will be?” 

That’s a fun question and the answers to that question are also quite revealing, providing good fodder for the session (and creating some levity in the process). I have never had clients guess correctly what my first question will be! Then I ask the “real” first question, “What have you been thinking since our last meeting?” 

I do use the first question at each successive meeting. And although it tends to no longer be a surprise, it remains an extremely helpful way to start a mediation session. 

This “first question” method is a powerful and effective tool in mediation. The clients’ answers give insight not only the mediator, but to each of the parties as well. These answers reveal a person’s feelings, fears, concerns, priorities, and values. These are all important building blocks to the type of problem-solving that is needed when mediating a divorce or a prenup. The “first question” lays the necessary groundwork to allow the process of finding solutions to begin. 

© Laurie Israel 2024.


Laurie Israel

Laurie Israel is an attorney, consultant, and mediator, concentrating her practice on both prenuptial and postnuptial agreements. She works as a consultant and mediator nationwide. She previously practiced for 35 years in the areas of tax law, divorce, collaborative law, estate planning, probate of estates and trust administration, as well… MORE >

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