ADR CORNER
IMPORTANT QUESTIONS TO ASK
AS A MEDIATOR
JEFFREY H. MARCUS
This article discusses important questions
that every mediator should consider asking
counsel, the parties, and themselves, before
and during a mediation. Why should a
mediator ask himself or herself questions?
I think that mediators ought to possess
an emotional intelligence quotient. The
following questions are meant to be a
suggestion, not an exhaustive list.
I. Why Asking Questions is Important
A. Asking Questions Enables Us to
Satisfy Our Professional Obligations
The Florida Supreme Court is empowered by
Florida Statutes §44.106(1)(2019) to establish
minimum standards for professional conduct
for mediators certified under Chapter 44.
Various Florida Supreme Court Rules that
impose standards of conduct may be met only
by asking questions. Such Rules include:
Rule 10.220 Mediator’s Role
Rule 10.300 Mediator’s Responsibility
to the Parties
Rule 10.320 Nonparticipating Parties.
Rule 10.330 Impartiality
Rule 10.350 Demeanor
Rule 10.630 Professional Competence
It is beyond the scope of this article to discuss
these Rules in detail. A few examples will
illustrate the point that mediators must ask
questions. Rule 10.220 requires mediators to
“reduce obstacles to communication, assist
in the identification of issues and exploration
of alternatives, and facilitate voluntary
agreements”. Rule 10.300 provides that a
mediator’s responsibility to the parties includes
honoring the right to self-determination, acting
with impartiality, avoiding coercion, improper
influence, and conflicts of interest, and
exhibiting appropriate demeanor. Rule 10.330
mandates mediator impartiality and defines
impartiality as “freedom from favoritism or
bias”.
B. Asking Questions Allows Us to
Practice Mindfulness
Mindfulness has been defined as the practice
of paying purposeful attention to the present
moment without judgement. The American
Bar Association (ABA) has endorsed
mindfulness for lawyers and has established
the ABA National Task Force on Lawyer Well-
Being. Mindfulness is also a useful practice for
mediators.
Mediators must be aware of and be prepared to
manage the emotional aspects of the disputes
before them. Asking questions is an effective
way to gauge the emotional dimensions of the
dispute. Practicing mindfulness may also help
mediators really listen to the parties and their
counsel, remain impartial, and exhibit required
professionalism.
II. Questions a Mediator Ought to Ask Counsel
Prior to Mediation
Some of the questions that a mediator ought to
consider asking counsel for the parties before a
mediation include the following.
What are the main issues in the dispute?
Do you have any questions about my role or the
mediation process?
Is there a business or other relationship
between the parties that your client wants to
preserve?
What is the status of the dispute?
Is counsel aware of any emotional or trigger
issues on either side?
Are there any special precautions necessary to
ensure a safe mediation environment?
III. Questions a Mediator Ought to Ask
Himself or Herself Prior to Mediation
Some of the questions that a mediator ought to
ask oneself before a mediation include the
following.
After reading the materials provided by and
speaking with counsel for the parties, am I
adequately informed and still neutral about the
issues?
Am I confident about my role and my ability to
effectively and properly mediate this dispute?
IV. Questions a Mediator Ought to Ask
Counsel During the Mediation
Some of the questions that a mediator ought
to ask counsel for the parties during the
mediation include the following.
What are your/your client’s goals for this
mediation?
What would help you achieve your goals?
What are the obstacles to resolving the dispute?
PBCBA BAR BULLETIN
5
What do you need to learn from the other
party(ies)?
Can you think of any creative ways to resolve
this dispute?
V. Questions a Mediator Ought to Ask the
Parties During the Mediation
What can I do to help you feel this mediation is
a safe environment?
Do you have any questions about my role or the
mediation process?
Are you authorized to settle this dispute? If not,
then who is?
VI. Questions a Mediator Ought to Ask Him
or Herself During the Mediation
Whether I have listened carefully to the parties
and their counsel, so that I can facilitate their
negotiations?
Whether I have learned anything during the
mediation that has challenged my professional
competence?
Whether I have maintained impartiality?
Whether I’ve used all of the tools available to
facilitate the parties’ self-determination of a
negotiated settlement?
VII. Conclusions
The questions we ask as mediators are of the
utmost importance to conducting optimal
mediations. We should ask questions that
are designed to provide a safe environment
for the parties to communicate, be creative
in resolving disputed issues, and ultimately
to settle their disputes on terms acceptable
to them. We also need to be mindful of how
we respond to the stimuli of the parties,
their counsel and the dynamic information
exchange of the negotiations both before and
during the mediation.
For additional ADR tips and resources, please
go to the ADR Committee page of the newly
updated Palm Beach County Bar Association
website at www.palmbeachbar.org.
Jeffrey H. Marcus is in solo practice in
Wellington. His practice focuses on business
law, employment law, equine law and
mediation. He is a Florida Supreme Court Civil
Circuit Certified Mediator. He is admitted in
Florida, New York and Pennsylvania. Jeff may
be contacted at [email protected]. His
website is at https://marcuslawoffice.com.