Successful mediations usually involve preparation by the parties and respective counsel.  Such preparation normally includes determining what you want to learn from the other party and developing a list of questions designed to elicit that information.  While this is a sound strategy, I would suggest an alternate or complementary way to ask productive questions. 

Although prepared lists of questions are useful, parties will often make one or more of the following errors in using a list: 

• Failing to fully listen to the answers by being too focused on the question.
• Using the list as a script instead of letting the answers frame the direction of the conversation. 
• Burying into the questions and failing to connect to the party answering them.

Simply put, a party may miss a chance to ask other important questions by being too focused on the script.  Instead of being part of thorough preparation, the script becomes a too heavily relied on safety net. 

So, what is the better alternative?  Ask a question from your script, but... listen closely and carefully to the answer.  Then, take a moment, perhaps a breath or two, and ask a question that springs from the answer to the previous one.     Consider that response and use the answer to frame the next question. 

Once a topic is exhausted and further questions do not occur to you, then return to your script and ask the next question on it (although you may find that the questioning process described here may have exhausted your script). 

You may ask, how will this process help me in mediation?  By closely listening to the answers to your questions, and framing the next question based on the previous response, you will discover you are learning and understanding more about the other side's case, and probably even more about your own.  This will lead to a more realistic assessment of an offer from the other side, and help you frame a realistic offer or counter-offer.  A mediation under these circumstances is much more likely to result in a resolution than one conducted based on strict adherence to a script. 


The author, Jay Lazrus, is an experienced attorney and neutral. 

For more information, or to retain his services as a mediator or arbitrator, please visit his website at www.raegroup. com or go to www.virtualcourthouse.com and select him as your neutral.