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April 2020
By: 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 judgment. 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


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?

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.

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 His website is at