Managing Impasse in Mediation:

1. Managing Impasse in Mediation: Embracing Entrenched Energy to Reframe Opportunities in Mediation

2. A Workshop Offered by: Harry Webne-BehrmanCollaborative Initiative, Inc. WAM Emerging Issues in Mediation Conference November 16, 2007

3. Agenda • Introduction to Impasse: “The moment is simply structured that way.” • Discussion: Our experiences mediating at times of impasse • Strategies for Managing Impasse • Special Issues: Power, Complexity, Multi-Party Disputes • Synthesis: Addressing Impasse is one of the Key Mediator Challenges

4. Negotiating Through Impasse • Participants perceive that they are no longer able to find effective solutions. • Impasse is a normal phase of any conflict resolution/negotiation process • Although often perceived as a threat or a demand, impasse can be an opportunity for new insights and collaborative solutions

5. Needs in Negotiation • Substantive needs = the “stuff” of the conflict… typical definition of problem • Procedural needs = how we foster a fair and well understood process… “Ground Rules” • Psychological needs = concerning trust, honesty, safety, security, integrity

6. Facilitator’s Role During Impasse • Help the group accept this phase as a normal aspect of the process • Support the group in honestly navigating the “emotional pathway” through the impasse • Seek insights from the group in terms of how they wish to continue • Engage in genuine personal reflection

7. Discussion: Our experiences mediating at times of impasse • What does impasse look like? • When does it occur? • How do disputants behave? • How do you behave? • What seems to be helpful?

8. Specific Strategies for Dealing with Impasse • Name the Impasse – Embrace the Opportunity! This isn’t a ‘bad’ thing, but an uncomfortable, yet important, element of the expression of the conflict • Identify Underlying Concerns...help participants go beyond initial positions • Respect the Variety of Needs...renew commitment to ground rules while helping the group focus on interest-based concerns... Use the ‘triangle of needs’ to shift focus to more constructive areas of inquiry • Explore Alternatives to a Negotiated Agreement...BATNA, WATNA, MLATNA... Carve out a realistic negotiating space • Respect Silence... allow time to process, s-l-o-w down the process at times, allow for structured breaks

9. Impasse Strategies (Cont.) • Be self-aware as a mediator: What does your body stance communicate? Consider changing your seated relationship to the parties, use the flip chart to redirect eyes and energy • Experiment With Active Listening Variations... intentionally restate and summarize to one another affording group members structured opportunities to listen and possibly understand, rather than forging ahead with problem solving • Talk about Feelings...there is value in traversing the emotional pathway...supportive validation and reflection from the facilitator can be extremely valuable • Caucus... explore sources of resistance, serve as “agent of reality”, gain a needed emotional release from the situation

10. Sources of Resistance and Some Helpful Responses Source Response • Fear of Threat Increase Safety & Security for Risk Taking • Lack of Trust Increase Reliability of Honest Transactions (Transparency)

11. Sources of Resistance and Some Helpful Responses (cont.) Source Response • Lack of Meaning Increase Opportunities/ (Inertia/Anomy) Access to “Communities of Practice” & Networks • Outmoded Processes & Design web-like organizations Technologies with capacities for self- organizing teams  Circulate info. that energizes the system with new capacity  Leverage opportunities for change  “Flow Facilitation”

12. Sources of Resistance and Some Helpful Responses (cont.) Source Response • Confront Status Quo (see above) • ‘Top’ Puts Kibosh on Innovations See #1 and #2 (“Why bother? It’s too scary...) • Stuck in the middle Reframe Issues  (internal/external divide) Collaborative systems Partnership • Too Stressed/ Overwhelmed Celebrate Accomplishments!  ENERGIZE! *** Be intentional and inclusive ***

13. Facilitating Through the “Groan Zone” (from Sam Kaner)

14. Dealing With Power Disparities • Recognize multiple sources of power: * Position power * Coercive power * Power of Expertise * Normative Power * Referent Power

15. Power Disparities (continued) • Clarify conditions required to promote an affirming negotiation climate • Consider alternative modes of communication • Build an “empowering agenda,” rather than an “enabling agenda” • Stay aware of BATNA…

16. Multi-Party Disputes Pose Challenges of Complexity • Spend extra time in pre-negotiation and needs assessment. This helps gain a sincere commitment to the process from all participants. It also clarifies how the issues are perceived from the various vantage points of the parties, minimizing surprise factors at the point of discussion. • Actively seek common ground early, not to minimize areas of difference, but to clarify them. By identifying issues that can be resolved in light of these areas of agreement, support can be built for continued dialogue. • Be sensitive to the tension between being (social cohesiveness) and doing (task effectiveness) within the group. Managing this inevitable tension requires great skill on the part of the facilitator.

17. Guidelines for Facilitating Negotiation Towards Multi-Party Solutions (cont.) • Recognize that several levels of negotiation need to occur. Cross-group discussion is the primary focus of substantive negotiation, but within-group communication is important to psychological and procedural needs in conflict. Try to allow time for dialogue within smaller groups, while keeping large group discussions focused on the explicit tasks of the group. • Whenever possible, have subgroups form that break down old coalitions. This may offer participants the chance to shift from adversarial to solution-oriented relationships. If the group has multiple meetings, they provide excellent opportunities to establish task forces, project teams and information gathering groups, which rearrange traditional alliances.

18. Guidelines for Facilitating Negotiation Towards Multi-Party Solutions (cont.) • Be especially sensitive to the role of moderates and extremists within the meeting. • Moderates are defined here as those who demonstrate flexibility in negotiation. This includes a willingness to consider a variety of options and a desire to attend to others' needs in negotiation. • Extremists in this context are those who rigidly hold on to a minority position. It is critical to empower the moderates to "find their voices," and be sure their views are clearly expressed.

19. Guidelines for Facilitating Negotiation Towards Multi-Party Solutions (cont.) • Continue to be vigilant regarding your impartiality throughout the process. Watch for possibly biased responses to extremists within the group; since they may be exhibiting attitudes you do not share, biases may lurk just beneath the surface of the meeting and emerge in subtle language or non-verbal behaviors. • Adapted from Harry Webne-Behrman, Conflict Resolution Skills site, UW-OHRD

20. View the Entire System • Identify all stakeholders in the conflicted system… “map it out” • Encourage full participation • Seek areas of greatest leverage and influence – budget efforts towards meaningful and achievable activities

21. Understand Dispute Settlement Systems That Are in Place • Formal Systems • Grievance procedures • Official policies • Informal Systems • People who are effective role models and good listeners with strong relational skills • Non-formal Systems • Intentional, peer-driven, draw upon representative cross-sections and cultures Build upon what works!!!

22. Questions? Comments? Please continue the conversation! Harry Webne-Behrman cimediate@sbcglobal.net or at UW-Madison (608/262-9934) Visit “Conflict Resolution Skills” website: http://www.ohrd.wisc.edu/onlinetraining/resolution/index.asp