Don't Even Talk to Me About...

Life often reminds me how few things are consistently true, and how often those few truths reassert themselves. One of those truths was recalled to me last week by a conversation I had with Paul Van Loon. Paul is the American Arbitration Association’s Northern California Regional Vice President. He had recently addressed a law firm, and had been challenged by an attendee’s objection to having been ordered by a judge to mediate a case in which his client, the defendant, had “absolutely no liability”. Paul wanted to know how I handle that assertion in mediation. I told him that I start asking questions.

I first trained as a mediator in the mid 80s, and have over the years served on many occasions as a trainer. And one of the first lessons taught in every training program is the paramount importance of asking questions. I know that if I’m talking more than listening in a mediation, I’m in trouble. And if I’m not asking questions, chances are I’m doing most of the talking, and very little learning.

A mediator cannot know what’s happening for the participants in the absence of questions, likely resorting instead to his or her own assumptions. Without asking questions, a mediator answers only to his own needs, not those of the participants; sees only the options present in her own vision and misses everything seen by others; believes only what’s in front and never discovers what lies behind the curtain. And most important of all, without asking questions, the mediator has no way of challenging anything without risking becoming, or being perceived as, an adversary.

It’s harder to listen than it is to talk, and it’s easy for a mediator to let the issues become hers rather than the parties’. Neutrality is not only as to the outcome.

I come by my belief in the importance of questions honestly. Not only have I relied upon the techniques of questioning as a mediator and, before that, as a trial lawyer, but, moreover, I come from a culture famous for answering a question with a question.

   Question: How’s business?; Answer: Why do you ask?
   Question: How do you feel? Answer: How should I feel?
   Question: What did you do? Answer: Who told you something?

In a mediation, the mediator should be the one asking questions. The participants should be the ones answering. That’s the truth of which I was reminded in my conversation with Paul. Ask questions. Each answer will bring up another question, and eventually something of value will emerge. And like so much that’s true in mediation, that same truth likely applies equally to much else in life.

The question posed to Paul, and him then to me, is not unique. I often encounter the same assertion in a mediation. “Don’t even talk to me about liability.”, says counsel. “Fine”, I say, “but may I ask a question?” “Sure”, comes the reply, or perhaps only “Okay”. So I do.

Do you think your opposing counsel is reasonably intelligent? Competent? Do you think she enjoys losing cases? Do you think he’s self destructive? Do you think she agrees with you that her position on liability is utterly without merit?

Chances are the answers will come Yes; Yes; No; No; and No. Which then allows the next question, “What do you think opposing counsel thinks about liability, and why?” At which point, the participant who forbade the mediator to talk about liability is now doing it instead. It doesn’t even matter so much which questions were first asked, or answers first given. If the process of question and answer starts, the parties will figure out what’s important to themselves and to the dispute. And as our mothers taught us, if we figure it out ourselves, it means more to us than if we’re told.

So I will thank the participant who says, “Don’t even talk to me about ...” for having reminded me that it’s my job to ask and listen. After all, if you don’t ask, how are you going to learn?