I recently came across a list of 10 questions that mediators should ask before and during mediations (10 Things I Wish The Mediator Asked Me . . . . None Of Which Are “What Is Your Bottom Line?” by Kristen M. Blankley) in order to focus the parties on resolution. I’ve added a few of my own that I often ask when a mediation session does not result in a settlement.
Before the Mediation Session
What do I need to know? The mediator needs to have an overview of the dispute from the parties’ perspective, whether from reviewing already prepared documents, a summary prepared for the mediation or from a pre-mediation discussion with each party representative.
Where are we at? Has there been any change in circumstances? Have there been any settlement discussions? In addition to understanding the facts and legal positions of the parties, a mediator should also have some understanding of why the case has not settled. The mediator also needs to know if there have been new developments in the parties’ dispute or changes in circumstances that might affect any possible settlement.
Is everybody that needs to be here, here? Mediation is only successful if all of the parties are at the table (or easily reachable). The people present should generally have the authority to settle.
Do you want my opinion/evaluation? Mediators should ask – prior to the session – whether or not they will be expected to give opinions or evaluations. As Kristen Blankley says,the answer is crucial: “when mediators give evaluations, particularly legal evaluations, the parties will necessarily engage in advocacy geared toward receiving a good legal evaluation, instead of advocacy geared toward problem-solving.”
At the Mediation Session
What do you need to hear from the other side? Do you need an explanation of certain decisions or actions? At the end of a mediation the parties often agree to disagree on what lead to the dispute, but it can be helpful if the parties make an effort to see the dispute from the other side.
What is YOUR settlement plan? To avoid a reactive approach to resolution, the mediator should ask about a settlement plan that is independent of the moves of the other side. What’s important for you to discuss with the other side?
Why is your proposal reasonable? How do you explain, rationally, how you came up with your proposal for resolution?
What is holding this case back from resolution? What are the stumbling blocks?
What do you need to know in order to assess the reasonableness of the other side’s offer? The other party must have enough information to make an informed decision on a proposal for settlement.
Do you need a moment to talk with your client? A mediator should understand that certain matters can, and should, be discussed outside of the mediator’s presence.
After a mediation that does not result in a settlement
If no settlement was reached, but there were reasonable offers for settlement made, does the offer remain open and for how long? Sometimes reflection or the input from someone not at the table can result in a reconsideration of an offer.
Do you have a better sense of the dispute now? And can you use that understanding to narrow the issues between you?
What’s the next step? In some cases, a mediation session with no deal at the end can be used as a mini case management session. Is there information that both parties need to obtain to assist in the resolution? Are there procedural issues that need to be resolved before the merits of a dispute can be addressed? Can the parties agree on a timetable for the next step in the dispute resolution process?