By: David Hubbard, JD

From a Webinar on Exploring Impasse to Reflections on Impasse:
Thinking about exploring impasse in greater detail after the most recent NMA Webinar?  NMA’s archive of webinars can provide a wealth of information, tools, skills, and insight into many mediation skills including addressing, dealing with, and exploring impasse. Consider starting with Ran Kuttner's webinar on “The Reflective Practitioner” to exercise your reflective practice muscles.  I mention Ran’s webinar as a starting point as I think addressing impasse starts with us as mediators knowing ourselves, our views on conflict, our worldview and understanding the importance of self-awareness.

With apologies to William Ury, impasse is like rain, normal, natural, and necessary.  We as mediators need to avoid the trap of seeing the parties as the problem and start with looking at ourselves.  What assumptions are we making about the conflict, the dynamics, the parties, and our interventions?  

Bernie Mayer's book The Dynamics of Conflict Resolution: A Practitioner's Guide, 2000, Jossey-Bass (new edition coming soon) is a source for reflecting on impasse. "As with so much else about effective conflict resolution, moving through impasse is usually more a matter of attitude than of tool or technique. Seldom will people break a significant impasse by using a clever intervention strategy, unless that strategy addresses the fundamental cause of the impasse of the needs of the participants." The point is rather than seeing hte parties as broken or that something is wrong with them, start with self-reflection.

Impasse is a challenge and an opportunity much like conflict can be both dangerous as well as an opportunity.  Lorin Galvin’s “Mindfulness in Mediation” Webinar is one to view again and reflect on the importance of being fully present, aware, engaged, and being with the parties where they are and not pushing our own pre-formulated agenda.  I hate to confess that I have tried pushing parties more times than I care to admit and have had to learn the lesson over and over that pushing, even in a kind and gentle manner is seldom effective.  

The parties must discover a path that works for them, when they are able and ready.
Not to be missed in the know thyself and conflict dynamics category is the NMA Webinar by Jacqueline N. Font-Guzman on worldview.  Understanding our own worldview and how it impacts our actions, our affect, our behavior, our demeanor, and our interventions is a key to dealing with impasse and engaging in the conflicts of others.  Recognizing patterns of behavior and asking the right questions at the right time and in the right way is improved with a better understanding of worldview and can aid in a mediator’s dealing with impasse.
If exploring impasse starts with us as mediators we also need to consider that impasse needs to be kept in mind from the very beginning of the mediation process.  Exploring impasse means looking at what we are doing at the very beginning regarding conflict engagement to prepare ourselves and the parties for constructive negotiations.  How does our intake procedure and process impact the potential for impasse?  How do we manage the parties and our own expectations?  What can we do before, during, and after the mediation session begins to set the stage for productive conflict engagement?  See Bernie Mayer’s Webinar on “Family Systems Theory” to help in your reflections on systems theory and assessing the conflict dynamics that are present in systems and often lead the parties to impasse.  

Conflict coaching provides many opportunities to help the parties engage in conflict and mediation more productively.  Communication and negotiations can be more constructive with appropriate with timely conflict coaching.  Check out Gary Weiss’s and Erich Hill’s separate webinars on conflict coaching.

There are lots of mediator tools and techniques for dealing with impasse during mediation such as:  

• Taking a break
• Providing food and refreshments
• Going back to the clarification conversation
• Exploring interests
• Naming the game
• Assigning some homework
• Asking effective questions
• Asking a problem-solving question
• Looking at the agenda
• Place an issue in the parking lot
• Scheduling another session
• Acknowledging and addressing emotions
• Going to the balcony or helping the parties to do so
• Focusing on the future
• Reframing
• Exploring possible resources
• Asking the parties about the situation
• Educating the parties
• Asking what information is missing or needed
• Trying an experimental, temporary, or trial agreement
• Generate additional options
• Bundling or unbundling issues
• Dealing with cognitive, emotional, & behavioral dimensions of the conflict
• In other words changing something

The list of course could go on and on and caucusing and decision tree analysis have not even been mentioned and are tools to consider and use.  Consider another look at Paul Ladehoff’s webinar on “Decision Tree Analysis”.  If dealing with attorneys in mediation is a concern Kristen Blankley’s “Advocacy in Mediation” webinar is a must see.  Reflecting on impasse can help you expand your toolbox as you create your own list of ways to address impasse.  Dealing with impasse is a given for mediators and as Bernie Mayer has said “can be viewed as a conflict within the conflict”.
David Hubbard, J.D.
January 2012

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David serves as the Director of Facilitation and Training at The Mediation Center.  He is an experienced attorney who, prior to joining the staff at The Mediation Center, practiced law for many years, was a business executive, as well as a private-practice mediator and facilitator.  In addition to his full-time position at the Center he serves as an adjunct undergraduate professor, adjunct faculty member at UNL College of Law, is approved as a local rule 4.3 mediator in Douglas County, and is approved as a federal mediator.  David’s mediation and facilitation skills have been refined through hundreds of hours of training through the likes of Harvard’s Program on Negotiation, Federal Mediation and Conciliation Service, American Bar Association, and hundreds of mediations and facilitations.  David is a member of ASTD and an Executive Committee Member of the Alternative Dispute Resolution section of the Nebraska State Bar Association.