Managing Impasse in Mediation:

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Managing Impasse in Mediation

• Embracing Entrenched Energy to Reframe
  Opportunities in Mediation

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A Workshop Offered by

• Harry Webne-BehrmanCollaborative Initiative,
  Inc.
• WSEMS Mediator Professional Development Program
• April 11, 2008

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Agenda

• Introduction to Impasse The moment is simply
  structured that way.
• Discussion Our experiences mediating at times of
  impasse
• Strategies for Managing Impasse
• Special Education Mediation Issues Legal/
  Procedural Constraints, Relational Complexity,
  Factors of Multi-Party Disputes, Systems
  Perspectives, Power Dynamics
• Synthesis Addressing Impasse is one of the Key
  Mediator Challenges

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Negotiating Through Impasse

• What does impasse look like?
• 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

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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
• How do these play out in Special Ed.
  Disputes?

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Mediator/Facilitator Roles 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

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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?

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Specific Strategies for Dealing with Impasse

• Name the Impasse Embrace the Opportunity! This
  isnt 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

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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

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Facilitating Through the Groan Zone (from Sam
Kaner)
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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.

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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.
  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, offering participants the
  chance to shift from adversarial to
  solution-oriented relationships. If the group has
  multiple meetings, these are excellent
  opportunities to establish project teams and
  information gathering groups, which rearrange
  traditional alliances.

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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.

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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

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View the Entire System

• Identify all stakeholders in the conflicted
  system map it out with fresh eyes ? keys to
  impasse may reveal themselves
• Encourage full participation but assess
  ripeness and energy to truly engage
• Seek areas of greatest leverage and influence
  budget efforts towards meaningful and achievable
  activities

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Understand Dispute Settlement Systems That Are in
Place

• Formal Systems
• Grievance procedures, legal channels
• Official policies
• Informal Systems
• People within the school or family circle who are
  effective role models and good listeners with
  strong relational skills for managing issues over
  time
• Build upon what works!!!

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Dealing With Power Disparities

• Recognize multiple sources of power
• Position power
• Coercive power
• Power of Expertise
• Normative Power
• Referent Power

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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

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Questions? Comments?

• Please continue the conversation!
• Harry Webne-Behrman
• cimediate_at_sbcglobal.net or
• at UW-Madison (608/262-9934)
• Visit Conflict Resolution Skills website
  http//www.ohrd.wisc.edu/onlinetraining/resolution
  /index.asp