After years of mediating conflicts I have developed a few insights on how to avoid unnecessary and nonproductive confrontations.  One example always comes to mind:

After participants in a mediation have reached an agreement, the mediator will transcribe it for them in writing. Many times that process reveals how differently the parties understand the terms. Even though the parties might say, “we agree,” in fact, it’s almost as if they have completely different points of view of the outcome. That often becomes clear when the mediator asks the questions of “who, what, when, and where.” If the parties are now genuinely in a cooperative state of mind, they are motivated to work together to “flesh out” their general agreement into one that is substantive, comprehensive, final and binding.

I’ve had a mediation end with an agreement that $50,000 would settle the dispute.  The parties were pleased and congratulated each other.  But in reality, all they had reached was two different understandings of what that $50,000 actually meant. As I asked questions, it soon became apparent that one thought it meant $50,000 in increased orders and the other thought it meant a check for $50,000 by the end of the day. They thought they had agreed, but it wasn’t until they worked out the written details that a final comprehensive agreement emerged.

So what does transcribing a verbal mediation agreement into a written agreement have to do with avoiding unnecessary and nonproductive conflicts?

Simply this: I can think of so many disputes were the heart of the misunderstanding was a verbal agreement the parties thought they had. When I ask the parties if they have any form of written agreement, even notes on the back of an envelope, the parties admit that nothing was ever written down.

I’ve had two neighbors in a very exclusive private resort in mediation over the construction of an expensive wall dividing their properties. Both parties told me they had agreed to split the cost for the construction of a decorative stone wall on the property line and that one party was to arrange for the contractor to do the work. Their dispute and subsequent mediation was over the words “on the property line” and the height of the stone wall.  (As a result, a very expensive stone wall had to be taken down, moved some eight inches, and reduced a foot in height.)

How could this dispute have been avoided? If one party had just taken out a note pad and started writing down some details in the presence of the other party. As those details “became real” on paper the parties would likely have seen the verbal agreement had a ways to go before it was a “true agreement.”  

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.