Mediation is a popular alternative to litigation. By working together with a mediator, couples can have more control over the results of their separation. Aside from control, the process is usually quicker, less expensive, and leads to better outcomes because both parties work together. The key to mediation is that all parties involved have mutual respect and a desire to work towards beneficial results. That being said a common concern or worry is that the mediator may not maintain neutrality. The neutrality of the mediator is the foundation of the trust for the process. As long as both parties know that the mediator is not choosing sides or favoring one half of the couple, they can proceed and arrive at a conclusion that works for both parties. Here are a few ways a good mediator can establish and protect neutrality.
The Importance Of Asking Questions During Mediation
A common misconception about mediation is that the mediator is going to provide couples with their outcome. In fact, a mediator’s true goal is to help guide couples through the process. Based on their experience with other couples and their knowledge of family law, mediators aim to help couples arrive at a solution that works for them. Usually, mediators ask open-ended questions in order to facilitate the conversation between parties. Skilled mediators use questions to uncover crucial information and help guide the conversation. The key to good mediation is for the couple to do most of the talking. As long as both parties are involved in the conversation, a mediator can ensure that the ultimate result is something on which the couple can agree.
Questions Mediators Ask
Mediators will ask a variety of questions to help couples work through the process. Questions help keep the conversation going and on track while also providing important context to the situation. Unbiased mediators will often ask these types of questions.
- Open-ended Questions: One of the most valuable question types is open-ended questions. Questions like “what do you want the outcome of this to be” can help both parties open-up and provide context. A mediator will always try to use these questions so that both members of the couple can express their goals in the process. This allows the couple to not only to work out what they specifically want, but to understand what their partner wants and work on a solution that satisfies both.
- Closed Questions: Alternatively, some closed questions may be necessary. A closed question is any question that can be answered in just a few words. This may be important in the fact-finding process. Understanding where each individual plans to live, for example, might be important in deciding parenting time solutions.
Questions Mediators Rarely Ask
The goal for a mediator is to ask questions that help move the conversation forward. There are some questions that mediators might ask, but could actually be detrimental to the process. Additionally, they could decrease the neutrality of the process.
- Probing Questions: A probing question is designed to encourage an individual to provide more information about something they already said. These involve a lot of “why” and “how come” questions. On the positive side they can help people open up who are maybe not providing enough information on how they feel and what they think. But on the other hand they can be dangerous as they border on being leading.
- Leading Questions: Leading questions are often avoided by mediators. A leading question is designed to push people in a specific direction. This can quickly lead to the process become less neutral as the mediator is trying to move participants towards a solution or outcome. Leading questions should only be used if a participant is not providing important information or dodging questions.
Why Neutrality Matters
At the end of the day, the best mediators are the ones that let the couple work things out together, a mediator is a silent guiding hand on the conversation. Mediators should provide legal information, but never legal advice. In order to remain neutral, a mediator cannot give advice, therefore the parties should hire an attorney to review the separation agreement after the mediator prepares it and before the parties sign it. By asking unbiased questions, a mediator can help a couple achieve an outcome that is truly under their control and mutually beneficial.