Alternative Dispute Resolution
A Summary of Gary Furlong’s Training Session
at the 2009 ADR Atlantic Annual General Meeting and Conference
June 13, 2009
This event was organized by ADR Atlantic and held at Saint Mary’s University on June 13, 2009 as an adjunct to ADR Atlantic’s 2009 AGM. Gary Furlong was an excellent presenter, invited interaction, and welcomed feedback and questions throughout the session.
The nature of a particular impasse is specific to each case. The role of the mediator is to get the parties to the impasse as quickly as possible, because that is where the work is. The parties must go through it, not around it. Impasse is not a wall; it is only a wall if we operate as if it is a wall.
“Impasse” must be distinguished from “breakdown”. Breakdown connotes disengagement and an end to the conflict resolution process. A breakdown represents failure only if we assume that everything is solvable. And that would be an incorrect assumption because not everything is solvable. The parties own the dispute, and if their differences are irreconcilable at the end of the day, that’s just real life sometimes.
The conference delegates provided Gary with the following “first thoughts” reactions to the word “impasse”:
- BATNA/WATN (Best Alternative to a Negotiated Alternative/Worst Alternative to a Negotiated Agreement)
- Hardened positions
- Barriers (in culture, personality, history, communication, understanding, etc.)
- Unmet needs, someone one side is not getting from the other side
- Something hidden, an anchor
- Failure to adequately explore, get behind, interests
- Mediator as a cause of the impasse, such as loss of impartiality, credibility
- Parties avoiding key issues
The mediator faced with impasse must redouble her or his efforts to “go a layer deeper and a layer deeper”. Faced with impasse, the mediator should instantly get really curious. The curious mediator then asks questions such as, “Why are we at an impasse?” ,“What is it you, Party, want and what do you want to accomplish?”, or “Walk me through what has caused you to feel this strongly about X”. Frame your questions in the form of an action here, whenever possible. The answers to your impasse-breaking questions will take you further toward further “unpacking the interests”.
The broad term “Interests” can generally be broken down into “Results” interests, “Process” interests, and “Psychological” interests. One or more of these interests has yet to be “unpacked”, and must be unpacked in order to begin to break the impasse. In other words, the mediator’s job is to bring one or both of the parties along from what she, he or they believe is the option to do nothing. They are not going deeper because they don’t believe they have to go deeper. The mediator will want to help them explore these beliefs juxtaposed against what is coming down the pipe toward them (BATNA/WATNA). If the mediator can help a party visualize her or his worst case scenario, and that scenario is better than the impasse the party is facing, then the likelihood is that the negotiations are not going to go further. That is, there is a breakdown. The party likes the worst alternative to a negotiated agreement better than going deeper into the impasse.
The mediator facing impasse is accordingly called on to test the parties’ anchored deeper interests against their BATNA and their WATNA. Our job as mediator is to ensure the parties are making informed decisions; our job is not ensure a settlement in every case. The capacity to imagine is a gift, and the mediator, through questions, can allow each party to step into or visualize their alternatives to a negotiated settlement. That is, the mediator facing impasse must help the parties “position [or compare] the alternative against where they’re stuck”. Questions from the mediator such as “What if...”, or “Just suppose...” transport the party into their BATNA/WATNA, and are accordingly powerful tools in the mediator’s toolbox.
Here is an example of the mediator’s question at this point, using the example of a workplace dispute: “So, just so I’m clear here, if you can’t get a letter of apology from your manager, you’d rather risk being moved by your employer to another division [another office]?” If the party answers Yes, then the party likes impasse better than their WATNA; however, if the party answers No, then the mediator has, through this question, caused the party to step into the reality of her or his WATNA for a moment, and allowed the party to reconsider their previously held belief that they have the option of doing nothing to further resolve the conflict.
Another way through impasse is addressing attribution. People in conflict or suffering from communication breakdowns tend to attribute positive motives to their own actions, and negative intent to the actions of the other side. This is basic attribution theory. A lot of anchors are deep-seated attribution. Intent – (manifests) Action – (creates) Impact. The “interpretive stage” for a party is in extrapolating intent from the action, and sometimes the party attributes intention that wasn’t there. So, using “I-messaging”, the mediator can help by drawing out the impact particular actions have had on the parties for everyone to hear.
Based in Toronto, Ontario, Gary Furlong, C. Med., has extensive experience in mediation, mediation training, alternative dispute resolution, organizational facilitation, negotiation, and conflict resolution. Gary is past president of the ADR Institute of Ontario, holds his Masters of Law (ADR) from Osgoode Hall Law School, and is the author of “The Conflict Resolution Toolbox”, and co-author of “The Construction Dispute Resolution Handbook.”
James Musgrave, Q.C., Acc. Med.
A Mediation Training Day with Gary Furlong, C. Med
A Summary of "Shapes" by James Musgrave, Q.C., Acc. Med.
On Saturday, September 6, 2008, a small but mightly group of local mediators spent the day at Saint Mary's University in Halifax, studying conflict resolution theory with Gary Furlong, one of Canada's preeminent conflict resolution practitioners. Read the summary.
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