Strategic Questions For Dispute Resolvers

© 2012 By Bill Eddy, LCSW, Esq.

Asking questions is one of the most powerful – and often misused – tools for professionals in dispute resolution settings, whether legal, workplace, mediation or anywhere. When you are dealing with high-conflict clients, it is especially important to consider the timing of different types of questions and also to know what questions you should never ask. Whether you’re meeting with an individual client or meeting with two or more clients together (such as in mediation or solving a workplace problem), the following principles generally apply.

Slow Down

The secret to managing high-conflict clients is to manage your own anxiety. One of the things that most professionals do when they’re anxious is to ask lots of questions. It gives the illusion of being in charge and of working on the problem, which distracts us from our fears or uncertainties regarding how to deal with a potentially difficult client. However, this often makes things worse and interferes with the most important first issue, which is forming a positive working relationship.

High-conflict clients usually have a history of broken relationships with family, friends and professionals. Thus, they feel extremely anxious when seeking the services of a new professional, or being required to use the services of a professional that they don’t want (such as a court evaluator or when required to use a workplace coach). Their anxiety is contagious, so we often catch it and – without even realizing it – pepper them with questions. Our own anxiety is also contagious, so that high-conflict clients often increase their resistance to us when peppered with questions, and the power struggle begins – and may never end.

Equally as problematic, is when they respond in the opposite way, so that they stop trying to say their concerns and become passive and just answer the professional’s many detailed questions. In this case, they assume that the professional will figure everything out and take care of it, with little participation by the client. Then, if the professional missed something important to them (which usually happens), they become very angry.

First, Form a Working Relationship

With high-conflict people (HCPs), the issue’s not the issue – their personality is the issue. (For an explanation of this, see my book It’s All YOUR Fault!For the professional, this means that your relationship is the issue more than anything else. You don’t need to know all the facts when you are forming your relationship. You need to establish a comfort zone for the client, so that he or she will feel committed to working with you as an ally, rather than as another person to be mistrusted or attacked. Ask getting-acquainted types of questions and demonstrate your interest in getting to know your client, more than getting to know the “case.” The threshold issue for HCPs is: Are you friend or foe? You want them to feel that you truly want to help them and that you see them in a positive light.

You also want your client to feel comfortable enough with you to spontaneously share uncomfortable information – without worrying that you are going to become impatient, criticizing or judging. HCPs often have embarrassing information about things they have done or things that have happened to them. Yet this uncomfortable information often makes the difference in your work, so you don’t want to discourage it from coming out. Let the client know that you are interested in knowing everything that’s important to them about their case, even if it’s difficult to discuss. Don’t be surprised or criticizing if this type of information suddenly comes out later on – it often takes them time to trust you.

To build this trust, at the start just get your client talking – about anything! When your client is talking, show your strong interest and concern. E.A.R. statements® can be particularly helpful here. These are statements that show Empathy, Attention and/or Respect. Your positive responses to your client when he or she is anxious will go much further in establishing a productive working relationship.

Second, Ask Open-ended Questions

Only after you have “connected” with your client(s) should you start asking questions relevant to the problem at hand. However, start with open-ended questions, rather than questions to get to the “core” of the problem, as you see it. You may miss the core of their problem completely, if you focus on your perception of the details too soon. Open-ended questions could be: “What are your concerns?” “What are your goals?” “What’s your picture of a positive outcome to this dispute?” “What do you think is really going on in this situation?” “How do you think the other person(s) see this dispute?” “What questions do you have for me?”

If you’re dealing with several people, make sure that you give everyone a chance to answer these open-ended questions first, before focusing on the details for any one person. In many group settings, mediators or managers often start trying to solve the first problem that they understand. Resist that urge and let everyone get their concerns on the table – or on a written list – before asking detailed questions. The benefit of this – especially if there is a high-conflict person in the group – is that the HCP is treated as an equal; no more or less important, and receiving no more or less attention in general.

As a mediator working with two or more parties in a dispute (especially if they include a potentially high-conflict person), I try to summarize their concerns after everyone has had a chance to speak. I find that high-conflict people tend to become more adversarial if you focus on them too much (they believe you are agreeing with them and become more aggressive), or if you focus on someone else too much (then they feel jealous or threatened that you are agreeing with that person). The best approach seems to be to briefly summarize each person’s comments or the group’s comments after everyone has spoken, then move on to the next task. It can help a lot to be strict about not getting into one person’s details too soon, until everyone has spoken and felt heard.

Third, Ask Your Detailed Questions

While it may feel slow to take this step-by-step approach, it will increase your chances of success – especially if you are working with a high-conflict person. Now ask your Who, What, When, Where, How and Why questions, to fill in your understanding of the case. Try to address these questions to everyone involved in problem solving, such as both parties to a dispute or a group solving a problem.

Make it a team-building activity, rather than appearing to be solving the problem yourself with one party. HCPs are very willing to sit back while you work hard to solve their problems. But when you are done, they will almost always reject your solution. They need to participate to the maximum of their potential, if they are going to buy into the solution. It has to be their solution, not yours. This is true, whether you are meeting with one client, two parties or a group of several people.

Don’t become overly concerned about understanding every detail. With HCPs, the details are often distorted anyway. If they are lying to you, they will have to build a more and more creative story to build on what they have already said, and you don’t want to push them into a corner. If they are describing unbelievable details with all sincerity, don’t make a big deal of confronting them with their inconsistencies by saying: “How could that be?” “That’s bizarre!” or “That couldn’t have happened.”

Instead, you can say that it sounds unusual and you will need documents or other witnesses if you are going to present this information to someone else. Your client may simply back down and say they don’t have documents or witnesses and drop the subject. That’s fine. You don’t need to trap your client or prove that they are wrong. What really matters is finding solutions – more than finding the best details. They can often solve a problem going forward, even when they disagree on the facts.

Of course, if you are dealing with a legal issue – especially one regarding illegal behavior, such as abuse, violence or theft – then you will need to get more detail, which is often best obtained by speaking to each person individually.

Fourth, Ask “What’s Your Proposal?”

Rather than focusing on the past with HCPs in a relationship dispute, progress usually comes with focusing on the future. Once your client(s) have answered the previous questions (which may take a long time, or may go very quickly), then ask them to make proposals.

If they start out making proposals earlier in the process, you can gently say: “That’s great that you already have a proposal. Write that down and we’ll get to it very soon when we focus on making proposals. But first we need to hear each person’s concerns and goals.”

In the proposal stage of the discussion, if an individual slips into blaming others or two parties start arguing about the past, just ask: “Then what’s your proposal?” This avoids getting stuck on irresolvable facts and viewpoints, and is also avoids admonishing the parties about what not to say. It puts the burden on the parties to work hard to come up with proposals. You don’t need agreement on the past, if you can get agreement on what to do in the future.

Fifth, Ask About Relevant Issues the Parties Didn’t Raise

As an experienced dispute resolver, you know many of the problems that can arise in the future for people with a particular problem. If you have worked on their expressed concerns first, then it can be totally appropriate for you to raise other potential issues later on that they may need to address, or to think about for the future. “Have you thought about such-and-such, which often comes up when people are dealing with your type of situation?” Or: “You may want to consult with an expert on ABC before you finalize these decisions. Do you know of someone or would you like a referral?” As long as you leave the decision-making up to them, you can raise almost any issue. The parties are often very appreciative, because they are absorbed in the present dispute and unlikely to see the larger picture that you may see.

Also, when dealing with HCPs and those coping with them, it is tempting to be so glad that they reached an agreement or that time is up, that we tend to avoid asking details that need to be asked. “What if someone doesn’t make the payment that is required? Here’s some options you may want to consider.” Or: “What will you do if you don’t reach an agreement? Do you know what the alternatives will cost you?” These are questions that the parties may not know to ask or want to think about, but will discuss if you raise them.

By saving these types of questions until later in the process, you assist the parties first in addressing and resolving their own concerns, rather than taking over the process from them. With HCPs, this can really help build toward making agreements, rather than rushing into specific narrow issues at the start will leave them feeling uninvolved in the solution and less respected as a person.

Questions to Avoid with HCPs

Dispute resolvers often inadvertently ask questions that make things worse. These same questions may do fine with ordinary people, but with HCPs they backfire.

Avoid: “Would you be willing to try such and such?” This question implies that you or another party have figured out the problem and the person being asked is essentially a passive party whose opinion isn’t being sought – just their consent. This also implies that you, as a dispute resolver, think that this is a good idea. So it brings pressure with it and possible power struggles may emerge if an HCP is involved. It’s much better to ask: “What are your thoughts or questions about that proposal or idea?” This leaves room to like it or dislike it. If the respondent dislikes the idea, then you can simply ask: “Then, what would you propose?” Don’t become invested in one particular solution, otherwise they are less likely to do it or will blame you if it doesn’t work.

Avoid: “How do you feel about that proposal?” Instead, ask “What do you think about that proposal?” High-conflict clients often feel terrible about any ideas except their own, so you don’t want to get them focused on how they feel. Instead, by asking what they think, it reinforces logical problem-solving and may help them stay focused on what will work, rather than how awful it may feel.

Avoid: “Why didn’t you say that before?” This shifts the focus to the past, which triggers defensiveness and justification and more unnecessary conflict. In fact, it isn’t really a question – it’s a criticism. Many times, parties get stuck in arguing about the past and why they should have done things differently. This can simply be avoided by saying: “What’s important is that we have a proposal now.”

Avoid: “Don’t you feel better now?” after solving a small problem. High-conflict people tend to have a lot of “all-or-nothing” thinking and defensiveness. When little problems get solved, it’s tempting for professionals to ask this question as a form of validation for the professional’s efforts and in order to boost that client’s optimism. This usually fails miserably with HCPs. They usually feel compelled to explain how they are victims of circumstances. They are most comfortable in the position of helplessness. They get more sympathy and assistance that way, and they may have grown up truly abused or entitled, so that they don’t see that their actions make any difference. So their response will usually be to get angry and say: “Of course not! Look at all of the problems we’re still facing. What we did today is meaningless compared to those! No, I don’t feel any better now!” The lesson here for dispute resolvers is to Forgetaboutit!

After supervising hundreds of role-play exercises in professional trainings, one of the most common statements I hear from participants is: “I realize I talk too much and don’t listen enough.” This is especially true when working with high-conflict clients. In short, professionals usually do better if they talk less and listen more.

By avoiding asking too many questions too soon, and adopting a more patient, step-by-step approach, you can often help high-conflict people reach an agreement, help them feel good about themselves and put less stress on yourself in the process.

Bill Eddy is a lawyer, therapist, and mediator. He is the co-founder and Training Director of the High Conflict Institute, a training and consultation firm that trains professionals to deal with high conflict people and situations. He is the author of several books and methods for handling high conflict personalities and high conflict disputes with the most difficult people.

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