Positive Negotiations, Part 7: The Affirmation Questions
In this video, I introduce the three types of questions mediators can use to help each side engage in a candid appreciation of their dispute. I call these the Affirmation, Acknowledgment, and Appreciation Questions, and they each have a specific role in helping each party consider all the circumstances of their dispute so they can make their own best decisions on how to resolve that dispute. In this video, I focus on the Affirmation Questions.
Video Transcript
Hello. In my last video, I discussed the importance of establishing a mediation environment that is conducive to the appreciation process - that is, the process of considering all the circumstances of the dispute so each side can reach their own best decisions on how to resolve that dispute. In this video, I will introduce the types of questions we can use during a mediation to encourage each side to consider all these circumstances, and I will focus here on the first of these - which I call the Affirmation Questions.
Now, ideally each side has opened the mediation by focusing their initial presentations on the best evidence they can use to prove their claims or defenses instead of the arguments they might make over the merits of their respective cases. That is a good first step in steering everyone away from the adversarial and positional approaches that tend to stifle a candid appreciation of all the circumstances.
The second step is for the mediator to ask open-ended questions about that best evidence, listening to and acknowledging the responses, and following up with further open-ended questions when necessary. These kinds of questions - especially when used in the safe environment of private and confidential caucuses - invite and encourage reflective responses. They ease the parties into considering circumstances, and eventually options, they may have so far ignored, avoided, or simply overlooked.
There are three types of open-ended questions mediators use to help each side work up to, and then through, a careful appreciation of their claims, their defenses, and their risks. I call these the Affirmation, Acknowledgement, and Appreciation Questions. Here I focus on the first of these: the Affirmation Questions.
Mediators use Affirmation Questions to build trust in both the mediator and the mediation process. They affirm the mediator has listened carefully to what each side has said so far, and they affirm he has heard and understood what they have said. It is worth noting this is more feedback than the parties will experience at any trial, where all they typically get is the limited responses jurors can give on a verdict form. Mediators also lead by example when they ask these Affirmation Questions. They demonstrate the deep listening they want each side to engage in so they, too, hear, understand, and appreciate what everyone else has to say.
A mediator can also take this opportunity to narrow down each side’s best evidence to their most impactful evidence, and to ask them why that particular evidence is so compelling. This shows the mediator is interested in what counts most for each side. It can help everyone table evidence that may be less consequential, and sometimes even distracting. And it eases each party into the appreciation mindset by getting them to reflect on what is their most persuasive evidence.
So the initial Affirmation Questions will typically start out by recapping the best evidence a party presented in the opening session, followed by something like this: “So what in your mind is your most impactful evidence on the issue of liability?”
This might be testimony from a particular witness, or some form of visual evidence - such as a video or a photograph. We can then review that evidence, and follow-up with simple “so what” questions: “So what impact do you believe this evidence will have on a jury?”
We can then follow up with “why” or “how”, especially if the evidence has its greatest impact when considered in the context of other evidence.
And then we can ask: “So where, in your opinion, does that get you on the whole issue of liability?”
With each of these open-ended questions, we are just inviting each side to reflect on their evidence. Of course, because we are talking about their evidence, we can expect self-serving responses - but that is fine at this stage. What we are doing here is:
Allowing each side to express their most favorable interpretation of their best evidence;
Ensuring the mediator understands exactly how that side interprets their own best evidence; and
Showing each side the mediator is listening carefully to everything they have to say.
Also, as with the initial presentations, we are focusing on what each side can do to prove their respective claims or defenses, reinforcing the overall positive nature of this negotiation process.
We can do the same thing for each element of the parties’ claims or defenses - letting each side talk while the mediator limits his role to simply listening. He can then recap the discussion, affirming he understands what each party has said, and also verifying what information he may share with the other side.
As we wrap up this confidence-building exercise, the mediator can introduce the next area of inquiry - the Acknowledgement Questions - by asking each side if they anticipate any issues with the admissibility of their evidence. In doing this, we introduce each side to the process of questioning their evidence instead of simply affirming it. We then continue with the topic of admissibility by asking the Acknowledgement Questions, easing each party further into the overall appreciation process. I will discuss those Acknowledgment Questions in my next video.
Until then, goodbye.
