At the recent Academy Awards, tuxedos and evening gowns had little impact on the dignity of the proceedings. In case you somehow missed it, Chris Rock, a presenter, made a crack about Will Smith’s wife, Jada. Rock said he looked forward to seeing her in G.I. Jane 2, referring to her closely cropped hair. Smith, who laughed before seeing his wife’s reaction, then walked on stage and smacked Rock across the face. He returned to his seat and yelled at Rock suggesting (colorfully) that he not mention his wife again. Rock proceeded to make his presentation after commenting, “What just happened?” Clearly, those two are going to need some mediating, but there is something else to learn here.
While the producers of the Oscars desperately tried to move on as if nothing happened, the rest of the world took to social media.
First, they sought to verify what had happened, as there were a few dead audio moments. Then, after those in other countries shared uncut versions of the video clip, the masses took sides. Immediately, knowing nothing more, they fell into one of three camps. The first admired Smith for sticking up for his wife who “everyone knows” suffered from Alopecia, a condition that causes hair loss. The second noted that regardless of her illness, Smith should not have resorted to violence. Some of these went further to challenge why the Academy allowed him to remain at the ceremony seated in the front row. A third group thought it was fake. Those were the first three reactionary groups. Smith’s babbling, sobbing, and disjointed acceptance speech later in the evening did nothing to move any of these groups.
What can a mediator glean from this (besides the fact that times have changed[1])?
These days, we immediately jump to conclusions and positions, and then vigorously defend them. Even those in the “it was fake” category were slow to come around, and some haven’t yet. Similar conduct reveals itself in mediations frequently. Each side doesn’t stop at sharing their position, they want the mediator to repeat it to the other side (who knows it just as well as the party arguing it). We can spend a lot of time at mediation arguing positions. But that’s not the point of mediation. Arguing positions is not any better than positional bargaining. Blindly sharing offers and counteroffers with no justification is at least negotiating. Successful negotiators know better. While it is important to make your positions known, they are better packaged as bases for offers – that’s principled negotiations.
What is missing from the Smith v. Rock melee and resulting social media fallout is something whose value a good mediator (and a good negotiator) knows well – questions.
Did Rock know Jada suffered from Alopecia?
Is there some history between Rock and Smith? Does it involve Jada?
Did the producers ask Smith to leave?
Had Smith threatened Rock before?
These fact-generating questions are important. And mediation is the perfect place to ask the types of questions that have not yet been asked in discovery or perhaps can’t be (or can’t easily be).
But questions also play an important role when it comes to actually overcoming impasse (and positions) and trying to solve the problem.
What are your interests?
What’s important to you?
What do you think is important to the other side?
Why? Why? Why?
Think about the questions that you would ask Rock and Smith if you were mediating their dispute, not about what happened or why, but the results, the impact, and the fallout. Those are the same types of questions that should be asked when it comes time to actually resolve a case.
[1] If people had historically reacted to “comedy” such as this, Don Rickles wouldn’t have made it through his first tour.