As I wrap up the training program for volunteer mediators I had mentioned in my previous post, I want to share more about what tends to be challenging to learn for those taking the course.

As successful professionals, they are all skilled at asking questions, but two styles of questioning they’re most comfortable with aren't best suited for mediators to use. 

Some have become comfortable asking investigative style questions. They have the expertise to ask the questions that would reveal "what actually happened." And based on past experience, they want to learn as much as they can before moving forward. I usually point out to my students that more likely than not each side in the dispute has a clear idea of "what happened" and that those stories will contradict. It's not the mediator's role to make determinations because the mediator is not a judge or problem solver. It's not the mediator's role to determine who is "right" and who is "wrong." It's the mediator's role to help the parties focus on the future, that is, where they want to go from the present and not to rehash the past.

Some successful professionals are skilled at interrogation style questions. That is, based on their own past experiences they have a theory of what occurred. Their questions tend to be phrased in a way to confirm their theory and gain an admission of guilt or blame. Again, that's not the mediator's role. The mediator helps the parties move beyond "what happened" to "where are we going to go from here."

So what styles of questions should the mediator use? Those who prepare others to be mediators may differ here, but I will share the styles of questions I stress.

First, the mediator should ask open-ended, neutral questions that encourage the person to share more information and to clarify what had already been said. Note that the audience for what is being said is more the party's opposition than the mediator’s. I often say that in mediation each party having the uninterrupted time to "have their say" is often the most valuable part of the mediation because the opponent now has the opportuntiy to potentially hear the other party's point of view and motivating interests. I almost always ask each party in turn one simple question: "So what would you like to see happen to today's mediation?" More often than not their opponent is surprised to hear what the objective is. And so often a disputant will say, "I just want to get this resolved." That answer is often a surprise to their opponent and a begining point for meaningful discussion.

Second, the mediator can ask questions that encourage the parties to think creatively. People are creative but sometimes need the encouragement to be so. Many learning to become mediators often see their role as helping disputants solve problems by telling them what to do. That is not the mediator's role. It is the mediator's role to help the parties become more creative problem solvers. As a result, when disputants are arguing over a dollar amount, one party will tell me in caucus that they simply don't have the resources to make that payment at that time. All I need to say is, "I understand you don't have the cash now, but are there other ways you could satisfy that?" Suddenly the disputant begins thinking in terms of payments or cash equivalents. I didn't tell them to do that; I just encouraged them to think of alternatives. 

I suggest to people learning mediation that it is an art form and like art the skills that go into it are often not obvious. If disputants leave a session feeling they solved their problem and ultimately didn't need the help of a mediator, I would say that the parties probably weren't aware of the mediator's skillful use of the art.

In other words, if they walk away thinking, "The mediator just asked us questions. We did all the work," then the mediator likely did their job effectively.

I am in the middle of a new training program for volunteer mediators. All have been successful in their careers and want to learn the profession in order to give back to their communities by volunteering as a Small Claims Court mediator.

This week they all began to learn just how much their listening skills need to improve. For example, during role play mediations, where they were playing the parts of the disputants, they were distressed to discover how little they were heard by others who were playing the part of the mediator. At the beginning of the class they all thought they were good listeners. however, they discovered that wasn’t as true as they hoped.

In mediation it is critical for disputants to feel that the mediator has heard and understood them. But for most of us that skill doesn’t come as easily as we might assume.

There are many reasons why at times we are not good listeners. Recent research has described one major listening problem this way: Our brains can be thought of as predictive. We are constantly guessing what we will hear next and tend to reject what we might hear in favor of what we assume was said.

In a simple classroom exercise the disputant role-playing a plaintiff described how her son had been bitten by her neighbor’s dog. She described her son, the dog, the incident and the medical bills. The role-play mediator assumed that the boy had entered her neighbor’s yard. She never said that, but most people assumed that they had heard it. Where did that come from? It came from their predictive assumption of what had happened.

So how then do mediators become better listeners? Actually, it’s quite simple. A mediator learns to do frequent summaries of what they have heard. That gives the disputant the opportunity to correct the mediator’s listening mistakes.

If the mediator had said, “Let me be sure I understand. Your son Ted was playing in your backyard. He went into your neighbor’s yard and was bitten by your neighbor’s dog Fido.” The disputant could have said, “No, no. Fido came through the fence into our yard and bit Ted there. Ted never went into our neighbor’s yard.” Big difference.

Mediators must learn to be skilled listeners, and equally importantly, skilled summarizers of what they heard.