A Mediator Skill Anyone Can Easily Use

It’s not unusual for me to receive an email from a former student asking my opinion about a situation they dealt with in a mediation. Recently, I received one from a Small Claims Court volunteer who asked for help.

He was mediating a dispute over an auto sale. The seller had asserted that the car would pass the smog test. However, when the buyer took the car in for an inspection it didn't pass and some minor repair work would be required it to do so. The buyer wanted the seller to pay for those repairs within a week. The seller did not contest being responsible for the repairs, but categorically refused to pay for those repairs within a week's time. At that point, the mediation reached a stalemate as both buyer and seller refused to budge. As the parties could not settle, the matter was referred to the judge.

My former student’s question was what could he have done to help the parties resolve their dispute. He felt that if he had known more about the legal issues he would've been able to better assist the parties.

Before I tell you how I answered his question, I must explain different styles of mediation. The evaluative style of mediation is most often conducted by attorneys and retired judges in which the mediator is active in evaluating parties’ cases and strongly suggests possible solutions. In facilitative style, the mediator does not evaluate the parties’ cases nor suggest possible solutions but rather guide the parties in reaching solutions of their own. Generally, community mediation centers and Small Claims Court volunteer mediation services use the facilitative style in the principle that in mediation parties must be able to determine their own outcomes, and along the way, learn some valuable problem-solving skills, which will help them in future disputes.

Facilitative mediators, such as those in community mediation centers and in Small Claims Courts, do not solve the disputants’ problems for them. In fact, I tell beginning volunteer mediators who typically have had successful careers involving problem solving, that the most difficult skill to learn will be how not to solve disputants’ problems for them.

So back to my former student’s question: What could he have done to help the car seller and buyer without solving the problem for them? I reminded him of one of the most important “tools” a mediator can use, which is to ask questions. Asking questions can encourage disputants to think, to evaluate and to be creative about their positions. For example, “Do you still want to purchase this car? What things could you suggest to make that possible?” and “If this sale falls though, what options do you have?” and “Why does one week make such a difference?”

In all sorts of disputes, mediators ask all sorts of questions. Asking questions doesn’t tell people what to do, but it can encourage parties to think more broadly. And anyone can apply this skill.  Rather than tell a person in conflict what to do and risk becoming involved or risk becoming liable for the suggestion, consider just asking questions.