Problem Solving Questions in Mediation
As a mediator, you can never engage parties in the problem-solving process too early, but perhaps the best time is when the parties have effectively rejected every solution that’s been proposed. Ask this very powerful diagnostic question:
What do you believe would be the best solution for everyone?
This question accomplishes three goals:
It moves the focus from the parties to the problem, removing some of the blame factor.
It makes each party stand in the other party’s shoes, switching their perspectives.
It engages the parties in a mutual problem-solving process with the goal of developing win-win solutions.
As an example, suppose Rex and Jane, board members of a local condominium homeowners’ association (HOA), and tenants Brad and Lisa arrived at the West Hollywood Community Mediation Center one bright spring morning fighting mad.
Brad and Lisa had been bitterly complaining to the board for more than a year about their upstairs neighbors, the Coopers. The Coopers played their stereo loud and late into the night. They had two dogs who engaged in a nightly Pekinese rodeo at 3 a.m., complete with barking, thumping, and the incessant click-clacking of untrimmed nails on hardwood floors.
If that wasn’t enough, the Coopers’ teenagers used the pool in the early morning hours after clubbing with friends. Sometimes they brought as many as a dozen of their friends back to their place to carouse, drink, and play Marco Polo at 2 a.m.
Brad and Lisa were threatening to sue the HOA if it didn’t control these hijinks. The board had issued warnings but had no authorization to terminate the Coopers’ tenancy for failure to abide by the rules.
The mediator had suggested several ways the parties might resolve the dispute, all of which they rejected. At the third hour, the parties were getting angrier and more entrenched, so he asked this one simple but powerful question:
What do you think would be the best solution for all of the homeowners?
“Everyone who’s obeying the condo rules should be able to evict anyone who isn’t,” Lisa offered.
“Great solution,” said Rex, “but you’ve disobeyed the rules yourself. Just last week, the Gomez family complained that you were grilling hamburgers on your balcony. You know that’s not allowed. Should I be able to evict you for that?”
As soon as the parties understood that sanctions for rule-breaking would apply to everyone, including themselves, their punitive views evaporated and they began to set reasonable limits on the board’s power and reasonable sanctions for disobedience.
This dispute transitioned into a joint problem-solving session in which the parties drew up a new set of regulations. The rules provided for graduated sanctions based on the type of misconduct and number of repeat violations. Everyone at the negotiation table wanted to give violators notice of a hearing and the opportunity to explain themselves and bring their conduct into compliance. Eviction was the last resort.
When the parties left the Community Mediation Center that day, they’d provided the procedural due process the U.S. Constitution itself guarantees. And they had done so without any lawyerly insistence.