The details of a present conflict often don’t matter. In a conflict between a home repairman and his customer, it may not be important to know the exact details of the work that was done or the monetary amount in dispute What is probably most important is that the repairman and his customer are actually brother and sister and that from the brother’s perspective, the fact that Sis refuses to pay him for the work he did is actually one in a long line of instances in which she has taken advantage of his generosity over the years. But, this information won’t ever be revealed if the conversation stays focused on estimates, invoices, and deadlines. Getting to the heart of a legal matter with your client is no different.
A simple question such as, “Can you tell me about the nature of your relationship?” can prompt clients to reveal what they find important about their interactions with the opposing party. A question like, “How is your relationship different now from when it started?” might reveal important details about when and how a problem began. Maybe a landlord and tenant always had a rocky relationship and frequently argued; but, things took a turn for the worse when the landlord yelled at the tenant’s children. Open-ended questions get to the core of a conflict. Often just the act of talking about the source of a problem allows clients to address calmly the matter and focus on resolving it.
Once a client starts opening up about the problem, open-ended questions can be effective in finding solutions. You might say to your client, “I’m hearing that accountability is important to you. What solutions might give you the accountability you’re looking for?” or “What would the ideal outcome look like to you?” These types of open-ended questions allow clients to “think big.” Follow-up questions can keep the creative energy flowing. “What specific things would need to happen to achieve your ideal outcome?”
Lawyers, especially mediators, must take care not to close down a conversation by asking closed-ended, suggestive questions, such as, “What if he paid you half now and then half after you do the repairs?” or “Have you considered the option of picking up the kids from a different location?” Clients likely will conclude you are suggesting what they should do. Close-ended questions also push participants toward specific outcomes and limit how creative the participants will be in resolving their own disputes.
To hone the skill of asking powerful open-ended questions, practice by imagining what questions you usually ask your clients, and then try to expand those questions beyond something that will produce a “yes” or “no” response. “What kind of car do you drive?” provides little important information, but “Tell me about your car?” fills in the details of what is important to the client about the car.
If your client seems stuck, instead of asking yourself, “Should I suggest that we take a break?” ask yourself, “What else haven’t I explored?”