Lockdown Dispute Resolution 101 #20: Effective communication strategies in lockdown – Appropriate questioning: Part 1

In lockdown communications enacting the elements of LARSQ can help to ensure that we can effectively negotiate and prevent, manage and resolve disputes. Questioning is the last element of LARSQ – but the skill of asking appropriate questions is critical for constructive communications and problem-solving. Mediators use questioning throughout each stage of the mediation process, and we can learn from the ways in which mediators practice the art of appropriate questioning.

Questioning 1

If one new thing we tried to do each day was to ask more clarifying questions instead of making assumptions and assertions, then our communications in lockdown would be exponentially more effective and respectful.

Appropriate questioning

There are different views as to the nature and extent of the questioning undertaken by mediators. In some mediation models, mediators conduct the procedure almost entirely through the use of questioning. In others, mediators ask very few questions of the parties but encourage them to explain certain facts or feelings directly to each other. The degree of questioning often depends on the stage and phase of a mediation. Mediators may be reluctant to ask certain kinds of questions in joint session or early in a mediation but may feel it appropriate to ask them in separate session or towards the end of a mediation. The mediator also needs to keep a check on questioning by professional advisers who may be present – as they may seek to interrogate or cross-examine the other party.

Questioning 2

The table below explains some of the different categories of questions, provides an illustration of each, the objectives for which each category can be used and the circumstances in which the particular category might be appropriate. They are based on a hypothetical mediation involving Karlie Meringe, a famous entertainer, and Nigel Nagel, a newspaper reporter. The dispute concerns Karlie’s defamation claim arising from a story in the Sunday paper claiming that Karlie had been involved in a scandal whilst on tour in Berlin.

Understanding different types of questions and their objectives
Type of question Illustration of the question Objectives of the question in the mediation process Circumstances of potential suitability in lockdown communications
Open ‘Karlie, would you describe in your own words how the newspaper story has affected you?’ General disclosure and exchange of information in an open-ended way; gets things started.

Useful when seeking a non-specific and non-defensive response from the other person.

Focused ‘Karlie, can you tell me how the report has affected your ability to perform on stage over the last 12 months?’ Disclosure of more detailed facts or information about a specific aspect of an issue, event, incident or theme. Used when there is time pressure or people are rambling and need to (re)-focus on particular issues.
Closed ‘Can you tell me, Nigel, whether the newspaper nominated you as the investigative journalist of the year for this story?’ Controlled disclosure of information through affirmative or negative response. For short clarifications.
Clarifying ‘So, Nigel, are you saying that you formed the view on the basis of information supplied to you that Karlie was directly involved in the events in Berlin?’ To verify or correct the listener’s understanding of a communication in relation to, for example, particular facts, interests, needs, and priorities. Appropriate at all times when active listening and reframing are called for; also used if the other person is not being sufficiently clear or specific on important matters.
Empathic ‘Karlie, it sounds like you’re “spinning around” and feeling helpless in this situation?’ To identify, acknowledge and validate important emotional, relational or symbolic themes. Appropriate at all times when active listening and reframing are called for.
Probing ‘Karlie, if you are to go on tour again, how will you deal with the public ridicule about the report?’ To obtain further specificity or justification from the speaker or to reality test options being considered. Probing questions are useful for ‘road testing’ solutions but can sometimes elicit a defensive response from the other person.
Leading ‘Now, Nigel, you were also responsible for verifying the authenticity of stories that were published in the newspaper, is that correct?’ To elicit information which the questioner already knows; to lead the speaker to a predetermined outcome. Only appropriate if uncontroversial information needs to be elicited. Otherwise not generally appropriate.
Cross-examining ‘Nigel, you said there were sufficient checks to identify Karlie’s identity in the story, but you did not actually examine the authenticity of the photograph that was submitted, did you?’ To test a party’s accuracy, reliability and general credibility; to expose contradictions and inconsistencies. Generally not appropriate or constructive.
Hypothetical ‘Karlie, if we could agree on the matter of compensation, what would you like to see printed in the newspaper as a result of these discussions?’ To get parties to consider options hypothetically without being committed to them. Useful when there are impasses or breakdowns in the communication or negotiation process.
Disarming/ distracting ‘How many reporters were writing for the newspaper in Berlin at the time?’ To deflect attention from a destructive interchange between parties. Useful at any time during when emotions are escalating or communications are becoming destructive.
Rhetorical ‘Nigel and Karlie, would either of you really like to go through a tortuous public trial?’ To make a point dramatically or to produce an effect. When the other person needs to be confronted with an obvious reality.
Ritualistic ‘Karlie, how are you this morning?’

‘Would you like a cup of tea, Nigel?’

‘Karlie, what did you make of the game last night?’

To support the ritual of small talk that builds rapport and gets things started. At the beginning of communications and at the end – as a form of ritualistic closing.
Rating or scaling ‘Karlie, on a scale of ten to one, where ten is irreparable and one is minor … just how damaging has this been to the sales of your new album?’ To establish the significance of an issue for a party and shift them from emotion to cognition; establish each party’s negotiability on respective issues. Generally useful when exploring issues and problem-solving.
Suggestive ‘Nigel, would it be possible for the publisher to contribute public relations resources towards Karlie making a public comeback?’ To suggest possible or obvious options for settlement; to float options without parties feeling committed to them. In facilitative mediation suggestive questions are used as a last resort, where the parties are making no headway on their own. They can be useful for option generating in everyday communications, however.
Neutral ‘Karlie, what timeframe would you be looking at for payment of compensation?’ [Instead of ‘Nigel, how quickly do you think you could pay?’] To highlight mediator impartiality by posing questions that are non-judgmental and value-free, and do not have assumptions, such as the need to repay quickly. At any time during communications.
Miracle ‘Karlie, if a miracle had occurred last night, and you woke up this morning with all your concerns about the story fully addressed, what would be different? What/how would you notice/see/feel? What/how would others notice/see/feel?’ To help the parties focus on a preferred future and imagine the dispute being over. To engage the right brain functions such as creativity and imagination and use senses such as the visual and kinaesthetic. Useful at any time when communications seem stuck.

At a broad level, no type of question is entirely unsuitable; suitability always depends on the context and the circumstances of the communication exchange. As a general rule, though, questions like open and clarifying questions are to be preferred for successfully encouraging positive and respectful questioning.

Questioning 3

In the next post we consider a specific approach to questioning that often features in the mediation process when mediators meet separately with the parties: reality testing.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #21: Effective communication strategies in lockdown – Appropriate questioning: Part 2

Acknowledgements

Mediation skills and techniquesThe content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.55-6.56 with the kind permission of the authors. Thank you – Laurence and Nadja! Both Laurence and Nadja are esteemed members of the ADR Research Network and have long been leaders in the Australian and international dispute resolution communities.

 

Questioning image 1: Royal Society of Chemistry

Questioning image 2: Sonru

Questioning image 3: Digital Promise

 

This entry was posted in Dispute resolution by Dr Rachael Field. Bookmark the permalink.

About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

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