As a trial attorney, I have learned to ask different types of questions, the primary distinction being between open-ended questions used on direct examination and leading questions used on cross-examinations. As a mediator, I have learned a different frame of mind, together with an appreciation of how questions can facilitate agreement. Questions are the mediator’s primary method of communicating with and among the parties. The parties will provide the answers. The parties will take ownership of the common ground in their answers.
John M. Haynes highlighted the importance of questions in his book, The Fundamentals of Family Mediation, and included a number of examples. I set forth some of them now for your consideration:
What worries you the most about the mediation/negotations?
Why do you think [name the party’s position]? How will this solve the problem?
Suppose you tried this option, what do you think would happen?
Are there other ways to solve this problem?
What happens if you don’t reach agreement on this problem?
Where do we go from here?
Which of these two options do you think is better?
What would you need from the other parent in order to agree to his/her position? What could you offer the other parent in order to get him/her to agree to your position?
Have we spent enough time on this issue?
Why do you think we are blocked on this issue?
What will happen if we do this?
Perhaps my favorite (though not really a question), came from a video mediation John performed: “Don’t tell me what you don’t want. Tell me what you DO want.”