Useful Compendium of Essays in Mediation Impasse

Just before Molly Klapper’s recent and much-mourned death, the New York State Bar Association released a wonderful book she had worked hard to edit: Definitive Creative Impasse-Breaking Techniques in Mediation.  The volume contains many useful contributions from extraordinarily accomplished mediators and trainers.  This and the following posts will highlight some of the best ones.


Rutgers Professor Jonathan M. Hyman writes about “The Roots of Impasse in the Mind of the Mediator.”  It is a perspective I had not even considered before — that the mediator may be the one who is dead-ending the negotiation process by his own closed-off observational skills.  Indeed, Prof. Hyman says as much: “I will argue that mediators may well bear a larger share of the responsibility for impasse than they would like to believe….. The way mediators think about the process of mediation — their modus operandi — may itself intensify, or even cause, impasse.”

Hyman suggests that there are four “approaches” or “mental models” into which mediators often confine themselves while they work.  He lays them out as follows:

Postitional/Distributive:  The mediator seeks to learn the parties’ bottom-line position, and structures the process to overcome resistence to making concessions. (“I want more, even at your expense.”)…Think Lawyers

Value-Creating: The mediator seeks to learn as much as possible about the parties’ underlying interests and needs as a necessary step to move the process ahead. (“Help me out, and maybe we can get you some of what you want, too.”)…Think Fisher/Ury

Relationship: The mediator seeks information about how the parties have related to each other in coming to the dispute. (“How can you be treating me in this awful way?”)… Think Matrimonial Disputes

Understanding: The mediator seeks to comprehend how accurately and fully each party understands the circumstances, perceived facts, feelings and motivations of their opponents and themselves. (“Don’t you hear what I’m saying?”)…Think Friedman/Himmelstein/Transformative Mediation

 The problem comes when there is a mismatch between the parties’ own condition(s) and the mediator’s inclination.  If a party is in the relationship mode but the mediator is seeking to add value, the mediator may be unable to assist with forward movement unless she perceives the incongruity and is willing (and able) to abandon her methodological predispositions.  The key is the variability of the mediator’s own modes, and the skill of really deep listening in order to perceive what mode is needed — what rules this particular game is being played by.

Hyman calls this intense state “listening beyond the music that’s playing.”  The mediator’s task is to listen both to the subject matter being shared, and also the substance of the communication.  “If one accepts the idea that a substantial part of a mediator’s responses and actions in a mediation are the product of an automatic kind of thinking, and if one further accepts the idea that these responses and actions are not random or idiosyncratic but result from mental systems that have some kind of unconcious order to them, then it is important for mediators to keep their ears open for the music beyond the music that they are consciously playing.”

This reminded me of a truly brilliant observation by a mentor at the Royal Academy of Dramatic Art, the late Hugh Crutwell.  He described the state of the actor at the moment of performance not as rehearsed or memorized or prepared or practiced, but rather as relaxed, released, confident, open, unpredicting, unpredictable, ready to pounce when provoked.  His term was that the performing actor existed in “a state of alert passivity.” 

Oh, how few actors — or mediators — truly accomplish that rare state of being.

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