What techniques does the mediator employ in the initial caucuses?

To elicit interests, determine priorities and develop trust, the mediator in prosando vs. High tech used various questioning techniques.

a. Open-ended questions to the Business representativeMediators intentionally direct questions about interests, goals and concerns to the business representative, not the attorney. Since parties may be reluctant to disclose information that weakens their own insistence on positions, the mediator must dig for information and will typically start such inquiry with open-ended questions.Opne-ended questions focus on a topic but are phrased to allow a speaker to decide what events to discuss, sequence to use and aspects to describe. They elicit maximum input from speaker without any narrowing of the topic by questioner. Important open-ended questions used by mediator were: “What do I need to know to understand this matter?” and later, “Ed, what didi you hope to get out of this deal?” and “what is your goal in this mediation?” Narrower or focused clarification questioning came later, such as, “Let’s focus on the lost profits clause. Tell me what interpretation you place on it.” At this early stage, a mediator typically probes indirectly for the client’s interests and priorities which narrower detailed questions will not elicit.

b. Follow-up QuestionsAs part of the eliciting hidden concerns and interests, mediator carefully listens to responses and pursues critically important follow-up questions. Follow-up is particularly important when the speaker reveals a goal or interest without specifying the reasons.Questions such as, “Why did you say that?” or “What do you mean by that?” assure the revelation of the speaker’s priorities rather than ones the mediator might presume or infer.For example, in the tape the mediator asked, “Why is time so important?” after Prosando’s president said, “We have to move quickly.”

c. Active Listening, summarization and ReframingThree common listening and response techniques help the mediator build trust and assure the mediator and participants that the mediator accurately understands the concerns and interests.i. Active Listening. Active listening empathetically acknowledges what a party has said

by reflecting back the essence of the statement with understanding but without evaluation. By going beyond a simple nod of the head as a person speaks or verbal signals that the mediator is listening, the mediator’s use of active listening assures a party that they’ve been heard.For example, in response to the mediator’s initial question during the caucus about what he needed to know to understand the dispute, Prosando’s attorney restated his key legal argument. The mediator responded, “I understand, I think, the legal issue…” before he turned to question prosando’s president. The attorney then knew that the mediator heard him, was interested and praised the essence of his concerns. Had the mediator made no comment on the attorney’s response and merely turned to question the client, the attorney may have felt disregarded rather than heard. Active listening assures speakers that they have been understood, an important component of trust.

ii. Summarization. Periodically, mediators summarize the business executive’s or attorney’s priorities or concerns. This technique allows the mediator to test his comprehension and permits the client to adjust any misunderstandings. Here, the mediator said to Prosando’s president, “So, Mr. Meinster, you hope to continue in computer sales.” Given more time, the mediator might have added, “Do I understand you correctly that your interests are to continue to sell computers, recoup your damages and move quickly to limit further damages?”

iii. Reframing. When mediators believe a party’s interest or priority would be totally unacceptable to the opponent and couldn’t form the basis of an agreement, the mediator might try to reframe the interest into acceptable terms that could become part of a settlement. In the example, a mediator might reframe as, “So, you’d like to have a computer available like the Futura that would satisfy your customers or a distributor who’d supply such machines.”

d. Clarification Questionse. Once a solid picture of current concerns and interests emerges, the mediator can then

require about particular topics via clarification questions. We see that type of questioning in the mediator’s focus on lost profits. He said to Prosando, “Let’s talk about your lost profits claims which I understand to be $6 million. Ed, what sales projection are you using in calculating that amount?” when told about lost projected sales, je asked how many distributors it would take to meet those projected sales. He further asked if any progress had been made on finding distributors. Each of these questions sought details about the problem. Those questions were narrow and addressed a specific topic but were not confrontational. The mediator did not say, “Your lost profits claim is based on speculative earnings, isn’t it?”In selecting this topic, the mediator was also seeking details on information that he perceived might help shape a solution. By inquiring about the number of distributors needed to make up projected lost profits, the mediator was gathering detailed information to help him propose alternative means of acquiring lost profits later in the mediation.