Hiking Boots for Mediators: Detouring Around Impasses

By Laura Melton Tucker, June 29th, 2010

Listen to this entry.

There’s a name for that moment during a mediation when one of the clients looks over at me and summons her inner spelling bee persona:  “I’m done. D-O-N-E.  Done.”  (The last done is with emphasis, in case I missed the point.)  In the course of a mediation it is common for clients to spend gobs of time, invest their emotions, and sort out details of their different stories, only to arrive at a point where there is nothing left to say.  Neither side will change their position.  Neither side will move one more inch to give up one more thing, dollar, or hour with the children.  Both sides are, to quote my client, D-O-N-E.  This statement is often followed by, “We’ll let the court decide.”  Negotiators call this a stalemate.  Mediators prefer the term impasse.  Whatever you call it, it feels like the end of the road; the proverbial dead end.  Letting this moment end a mediation is something that either party can choose to do.  As the mediator, however, I see this moment as an opportunity to find a different direction to take the conversation.  Sometimes I guide my clients to an underpass – we might go treasure diving for the emotions underlying the conflict – or I might guide them to an overpass; we’ll take a bridge forward and out of the locked resistance.  In real life, these moments may look something like the following mediations.  I’ve changed the details to protect the participants’ privacy, but the gist of the situations remain, and illustrate how impasses can be turned into points of detour on the road toward resolution.

The first example involves middle school students caught up in bullying.  Bullying is about asserting power in a perceived zero-sum scenario.  According to the bullier, there is only so much power to go around, and he’s not going to share it.  To gain power he taunts, threatens, spreads damaging rumors and sometimes resorts to violence.  A bullying case at one of our middle schools grew serious enough that the administrators contacted me to conduct a mediation.  The meeting included two students and their parents.  I asked the parents to watch the first half of the mediation before joining the conversation.  I didn’t realize at the time that I was laying the groundwork for a bridge-overpass to circumvent the students’ impasse.  I will confess that these students were tough customers.  Adolescents are reluctant talkers when they’re around adults.  There were long periods of silence.  When one person’s story didn’t match the other’s, there was little for me to go on.  I was looking for opportunities to point out commonalities, good intentions, solid misinterpretations of one another’s actions and words.  The students gave me little to work with.  Both participants talked until they had nothing left to say.  Quiet, arms folded, positions stated, they faced one another  with animosity, knee deep in patterns of bullying behavior and aggressive actions.   Suddenly, it occured to me…I had an untapped resource:  the parents.  Once I invited their participation, the parent’s words provided the bridge, the overpass, so to speak, out of the impasse.   Calmly and kindly one student’s mother offered her assessment of the two student’s conversation: “Listening to both of you speak, I hear two articulate, persuasive, strong leaders.  You are the centers of your friendship circles.  You are role models for others who admire you.  You both have a unique opportunity to put your leadership skills to good use.”  The other student’s parent chimed in with his agreement. The parent’s words transformed the meeting.  Rather than hijack the conversation, as had been my pre-meeting concern, their words built a bridge of cooperation and good will between the students.  This changed the way the students saw one another. The conversation shifted and the students began talking.  They asked one another to clarify things they’d heard from others.  What emerged from their conversation was an “aha” moment.  Their friends were feeding off of the drama and keeping it alive by spreading untruths.  Their friends were stirring the pot.  The students left understanding one another better.  They recognized themselves as both the bully and the bullied.

In a different mediation setting, an asset division case between a couple married for ten years, the divorcing husband and wife worked for 2 hours slicing and dicing their worldly goods.  Wedding presents, parent presents, furniture sets and the family pets were passed across the table like trading cards.   There were spreadsheets and value references and pages of supporting documents.  At the end of the two hour negotiation, the couple was nearly finished.   They were down to one final item – a mere $200 apart – and the conversation grinded to an angry halt.  Neither party would relent.  They were at an impasse.  At this point I suggested reconvening at another time.  We were all exhausted.  Both parties insisted they wanted to conclude their business that day.  Instead, I made a different suggestion.  In a long mediation, moments of impasse can be a good time for a hall pass – a water or bathroom break to stretch the legs and mind. The grip of the participant’s power lock may be loosened with some time and space between the angry words. This is also an opportunity for a private caucus.  I asked for one and stepped outside with the husband who paced, smoked, and asked for advice.  I declined his invitation to weigh-in, and asked if he felt like the process was working for him.  ‘Not really.” he confided.  When I asked why, he explained, “I don’t even want a divorce.”  Inside, meeting with the wife, I got a similar response to the same question.  “This isn’t working because he’s unreasonable.”  We gathered again after our separate meetings, and I began by asking if they had new ideas about how to resolve the issue we’d left on the table.  Silence.  They weren’t biting.  I decided the impasse might need an underpass.  I offered them a gentle invitation to dive deeper: “Often when clients are this close monetarily, but unable to settle, I wonder if there aren’t other issues holding them back from agreement.  Perhaps there are reasons you’re not ready to be done?”  This question unleashed a torrent of words and feelings that they’d been side stepping all morning.  We ended the mediation without an agreement, but the parties had specific ideas to chew on.  One week later, they contacted me with the last of their issues worked out.  I  wrote up their mediation agreement and sent it off to their attorneys, glad that they’d resolved their dispute over the last item, grateful that they’d worked through their impasse, but mindful that their success comes at a difficult juncture in their lives as they move in separate directions, apart from one another.

The takeaway in these two stories, for mediators and those involved in disputes, is that impasse is a normal part of the mediation process. When discussion runs into a roadblock, there may be a way through the impasse by “hiking around” in search of another  route through the conflict.  Sometimes it works to go under, by getting to the heart of underlying emotions.  Other times it works to go over, by finding bridges of commonality, good will, and shared perspectives that soften the edges of the dispute  and make it possible to keep going. Contrary to how it may feel sometimes, the mediation doesn’t have to be D-O-N-E until every path, under, over, around, right through the middle, is explored as a possible way forward, through, and finally out of the conflict.

3 Responses

  • Greg Mahaffa says:

    Great case examples! I was hoping that the divorcing couple secretly wanted to stay together, but that was wishful thinking for a storybook ending. You are really patient and relentless in your effort to find those “underpasses” and “overpasses”. Your ability to find those “bridges” is key to a successful mediation! I may have actually learned something today. Thanks!

  • Vicki Philipps says:

    This was fascinating reading for me! I too loved reading your examples and wished the divorcing couple decided to stay together. I was amazed to hear that school administrators sent a bullying case to mediation! I was even more amazed that it was productive and went okay for the bullied and bullier. Clearly this had to be the result of a good mediator!

  • Mark of Iowa says:

    Total awesomeness! If I ever needed a mediator, I’d want one with your insight and compassion.

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