Needs, wishes and fears are at the root of disputes. They can be difficult for parties to share, yet are key for solving disputes. Facilitators can use different methods to find out what needs, wishes and fears (interests) are.
The lawyer shall listen to all the details of the dispute as described by the client. Usually, clients try to identify the problem and tell lawyer the problem as they perceive it. Once the background of the problem has been described by the client, the lawyer shall ask complementary questions in order to establish the scope of the problem: why and how this problem occured, what is the claim of the client, what are the main counter arguments of the opposite party, what does the law and practice prescribe in this situation, how does the opposite party perceives the problem etc. The questions shall be posed correctly in a simple and clear way in order to receive complete picture of the problem. The lawyer shall explain to the client that the information provided by him or her on the issue, shall be true and correct. This would enable the defense to select the right strategy and achieve effective solution to the problem. It shall also be highlighted that in case the issue reaches the court, judges will establish the facts and in case there is an incorrect infomation, this would work against the client. In addition, the lawyer shall review all the available documents and papers on the case in order to identify the problem correctly. Documents review may help to independently identify the problem, as the client most often presents facts and information from his or her perspective. All the details are important in this terms.Very often, clients tend to forget telling the lawyer the detail or showing him/her a reference or paper that might completely change the substance of the case. For example, when the land or any other property was purchased matters in property division disputes in cases of divorce. If the property was purchased before the marriage, then the other part does not receive a share if there is no child from this marriage. If the property was purchase after the marriage the wife shall be entitled to a share from this property even if there is no child in the family. Example for utilization of the tool: A woman approched Praxis legal aid center with her legal problem related to property. She divorced from her husband and wanted to receive her share from their joint apartment. In the beginning she was claiming that her former husband did not want to share flat with her. In order to sort this problem out, Praxis lawyer suggested meeting with her former husband. She was totally against meeting with him. In the beginning, Praxis facilitator thought that this is related to the hostility over property sharing and that her former husband did not want to compromise on property issue. After meeting with husband, third party persons and relatives it was turned out that the woman worried about possible take over of their child by her former husband. So, the problem was related to the emotional issues rather than material – property related issue. In this case, the task before the facilitator also changed and he managed to bring her former husband to an agreement to write a written committment approved by the notary office on absence of his intention to take over their child.
Nicolien Verkleij, judge at the court of The Hague and Head of the Dutch expert group for conflict resolution "Expertgroep Maatwerk Conflictoplossing" puts forward these 4 points;
The facilitators want to support parties to find a good solution. In this process facilitators need to support parties to identify their aspirations, fears and their real problems. To understand clearly the root of problems and in order to find solution, mediators can use a number of questions as following:
Mediators need to create a matrix and the branches of conflict (conflict tree) to make sure that they understand the conflict very well. It can be an obstacle to resolving a conflict when parties only hold on to their position. It is important in mediation that parties get an understanding of the perspective of the other party and can reflect on their on own position. To help parties to find middle ground, the facilitator needs to know clearly the key interests of both parties. These interests can be uncovered with the use of the following questions.
Asking open questions: facilitators in all countries ask open questions to uncover the problem. Facilitators in Cambodia have good experience with asking open questions. Gradual introduction: lawyers for Praxis in Azerbaijan ease into questions about interests by asking relaxing/welcoming questions that are not likely to be points of argument. They then build up to the needs and interests at the heart of the dispute. Making a map; Facilitators in Egypt reported to make a map of the problem to make sure that they have complete picture. Mediators from KBH create a map of the problem as the first step in the mediation process. This map includes all the relationships and events that have occurred in the dispute.
Asking good questions:
Mediation handbook UNDP Cambodia, 2010 (download here)
Pennebaker, J.W. (1995) Emotion, Disclosure, and health: An Overview. In Egan, G. (2007) The Skilled Helper. Brooks/Cole:Belmont, CA
Lewicki, R.J., Saunders, D.M., & Barry, B. (2003) 'Negotiation' New York: McGraw-Hill p.175
Egan, G. (2007) The Skilled Helper. Brooks/Cole; Belmont CA
The 7 powers of questions; Secrets to successful communication in life and at work' Bonenkamp, H.J., Brenninkmeijer, A.F.M. (2001) Handboek mediation Leeds, D. (2000) Barendrecht, M and Kamminga, P. (2004) Effectief conflict oplossen
P.O. Box 80523
2508 GM The Hague
+31 70 3589221 (phone)
+31 70 3549766 (fax)
Faculty of Law, Tilburg University
Room M 907 (Montesquieu Building)
PO Box 90153
5000 LE Tilburg
+31 (0)13 466 2281 (phone)
+31 (0)13 466 2323 (fax)