Impasse in Mediation: When You’re Stuck, Ask Questions

Lawyers, in particular, are really, really good at spotting issues, marshaling facts and constructing arguments.  But, asking good questions to resolve a dispute?  Not so much.

Wharton School negotiation professor and author of Getting More, Stuart Diamond, notes, “[T]he single biggest cause of communication failure is misperception.  Further, he says:

“Often the things you hold so firmly and deeply are invisible to the other party—they don’t exist….So to persuade people with different perceptions, you must start with the notion that your ‘facts’—your ideas, thoughts and perceptions—are invisible to them.  What you see so clearly, the other party may not see at all.”

It stands to reason that if you are holding on to your ideas and they are invisible to the other side, that they are holding on to their ideas and those are probably invisible to you.  What to do?  Ask questions.

Diamond notes that one of the best problem solvers in TV history, Columbo, would ask, “Help me out here.  I’m confused…”  Try it yourself.  As Diamond says, “Isn’t it smarter to find out what they are thinking before making a decision about what to do?”

If you are at an impasse in mediation, you will want to find out what the other side is perceiving.  Too often, we assume we know.  Too often, we don’t know.  So ask.

Asking questions has several salutary effects:

• It shows that you are interested in them and sets the table for persuasion
• It helps you understand what Diamond calls “the pictures in their heads”
• It doesn’t commit you to anything
• It keeps the momentum for negotiation and resolution going

And here’s a bonus:  asking questions can elicit information you didn’t already have that you can use to settle the case.