Positive Negotiations, Part 8: The Acknowledgment Questions

Here, I discuss the “Acknowledgment Questions” - the second area of inquiry mediators can use to advance a positive negotiation process.  These begin by encouraging each side to air any genuine challenges they may have to the admissibility of the other side’s evidence and, by extension, to acknowledge what evidence is admissible.  There are several reasons for doing this, which I explain in this video. 

Video Transcript

Hello, and welcome.  In my last video, I explained how we can use "Affirmation Questions” early in a mediation to build trust in the mediator and the mediation process.  As I explain in this video, we can then use Acknowledgement Questions to build trust between the parties. 

So far, the mediator has focused on each side’s own evidence, ultimately asking them if they anticipate any issues with the admissibility of their own evidence.  With the Acknowledgement Questions, we ask about the admissibility of the other side’s evidence - and there are several reasons for doing this. 

First, it continues the process of building trust by raising what could be a critical issue that should not be overlooked. 

Second, if there are any genuine admissibility issues, let’s get those out on the table so we can address them up front. 

Third, it identifies all the evidence the parties agree will be admitted at any trial - meaning we have collectively reached one area of agreement very early in the mediation. And this is a positive step, no matter how modest that agreement may seem.

Fourth, we can go further by recognizing this is not just an agreement, but also an acknowledgment by each side of what the other side can do at a trial. That acknowledgement can soften barriers, build trust, and ease the negotiation process.    

Finally, by acknowledging certain testimony, images, documents, etc. will be admitted at any trial, each side has identified the evidence they should at least consider as they weigh their risks and determine how to proceed.  That evidence will be the focus of the Appreciation Questions that will come next.  

Now, by the time we get to these Acknowledgment Questions, the mediator will have a clear understanding of each side's best and most compelling evidence.  He can now simply ask each side: “Is there any evidence the other side intends to use at trial that you believe is inadmissible?"

If the answer here is “Yes,” the mediator needs to ask “what” and “why” so he can - if permitted - discuss those issues with the other side.

For all the other evidence, however, the mediator can then ask questions like these:

“Do you agree the other side will be able to submit x, y and z in evidence?” 

“Is there any reason you should not acknowledge that?” 

“May I make that acknowledgement on your behalf when I next meet with the other side?” 

“I will at some point ask you questions about that evidence to help you evaluate how it may impact you.  Will it be alright with you if I let the other side know you will at least consider that evidence as we proceed with the mediation?”

“Would it help you if the other side made similar acknowledgements regarding your evidence?” 

Again, what we are doing here is: 

• Finding areas of agreement - modest as they may be since we are only talking about the admissibility of evidence, and not its weight, at this stage; 

• Building trust, and softening barriers, by encouraging each side to acknowledge what the other side “can do” to prove their claims or their defenses; and

• Orienting each side to the evidence they will be wise to consider as the mediation proceeds.  

So by this stage everyone has been able to put up their best and most compelling evidence.  They have had the opportunity to explain to the mediator why it is compelling, and what they expect it to prove. The mediator has affirmed he has listened to and heard everything each side has wanted to say.  All sides have aired any genuine issues of admissibility.  They have each acknowledged what evidence the other can present to prove their claims or defenses.   And so far, everyone’s experience with the mediation has been benign and generally positive.  

We are now ready to move on to the more challenging questions, where the mediator asks each side to consider the potential impacts - or the risks - of the other side’s best and most compelling evidence.  These are the Appreciation Questions, and I will discuss those in my next video.  

Until then, goodbye.