Advanced Mediation Boserup

Nordic Forum for Mediation

Mediators' challenge – Deadlocks and Impasse in mediation

Helsinki, May 26 – 28, 2006

Nordic Conference 2006

©hansboserup@gmail.dk www.mediator.dk 2007

How to avoid Deadlocks? - Breaking the Impasse! ©hansboserup@gmail.dk www.mediator.dk 2007

Hans Boserup

Mediator, Mediation Activist,

Appointed Mediator at Western High Court (DK),

Senior Lecturer,

Attorney at Law (Admitted to Supreme Court)

www.mediator.dk

[email_address]

Privileged Hans in Pakistan in unbelievable aftermath of Cashmere earthquake 2005 ©hansboserup@gmail.dk www.mediator.dk 2007

Overcoming mediators' nightmares in mediation

How to avoid impasse?

The more you:

take over the responsibility for solving the matter,

focus on results in a particular direction ,

share legal knowledge,

ask linear questions

the more you will meet impasse

Breaking the impasse!

Private meetings (caucus),

Free storytelling rather than questioning ,

Circular questions,

Focus on empowerment and recognition ,

Awareness of the micro dynamics in the mediation room,

Can break impasse

What is conflict?

Conflict can be defined as tension between a party, needing change and a party, needing status quo or another change

Conflict can be defined as unmet needs

Conflict can be defined as a breakdown or a crisis in the parties' interaction

The style of mediation adopted depends on how you define conflict

The party in power to define the issues of conflict also possesses the power to identify solutions

What is Impasse or Deadlock?

The definition is closely connected to your definition of conflict

Tension do not decrease

Needs are not met

Breakdown or crisis is not repaired

Context is not recognized

Disempowerment is not changed into empowerment

The Magic of Empathy

Genuine empathy empower; – artificial empathy disempower

Empathy in turns while the other party is watching is by the parties accepted as useful and not seen as sympathy or being impartial

The invisible curtain while taking turns of empathic listening

Don’t only listen to the party; - be him with all his special personality, values, fear, pain and pride. – Conceive the world as he perceives the world.

It takes genuine empathy to get behind these resolute faces ©hansboserup@gmail.dk www.mediator.dk 2007

Mediating in Afghanistan ©hansboserup@gmail.dk www.mediator.dk 2007

Empathize with all parties ©hansboserup@gmail.dk www.mediator.dk 2007

How does the party experience and interact with the world?

Cognition : How the party perceives and interprets information

Affectivity : The party’s range, intensity, lability, and appropriateness of emotional response

Interpersonal functioning : How the party chooses, initiates, and manages relationships

Impulse control : How the party self-regulates behavior in response to needs or desires.

Imagine you were him. How would life look like?

Summarize his expressions so he recognizes him self in your summary.

In your summary you ad hope , opportunities and options :

So you would like, wish, hope …

So you would like to see that …

It is not fair that …

You fear that …

Hans’ staf in Afghanistan ©hansboserup@gmail.dk www.mediator.dk 2007

Empathize with his Mental Status

Orientation

Attention and Concentration

Motivation

Speech

Thought Quality

Thought Content

Intelligence

Insight

Judgment

Appearance

Mood

Insecurity

Affective Expression

Imaging that your party due to stress reacts with an appearance similar to mental disorder

The party appears:

Dramatic, emotionally labile, or erratic/unpredictable

Consider how you would communicate to a party being:

Borderline

Narcissistic

The borderline dislikes to be left alone ; - so never give him the impression that he will end up being alone

The narcissistic dislikes to be regarded inferior ; - so never give him the impression that you regard him inferior

The party appears:

Uncertain, anxious or fearful

Consider how you would communicate to a party being:

Avoidant

Obsessive-Compulsive

Be aware:

Parties with disorders are very difficult parties in mediation!!!

Pakistan-Indian Frontier – Rituals to avoid open conflict ©hansboserup@gmail.dk www.mediator.dk 2007

Styles adopted

Using the Nordic mediation non-model at war may compare to catholic priests advising on sexual and family issues

Watch these hospital beds after ethnic cleansing

Striking the right balance

The more you take over responsibility for solving the matter, the more you will meet impasse

The more you focus on results in a particular direction , the more you will meet impasse

The more you share legal knowledge , the more you will meet impasse

Private meetings (caucus) can lead to impasse and can break impasse

The more the parties in joint sessions are able to feel own dynamics and observe the other party’s dynamics , the less you will meet impasse

The more you talk or otherwise have the floor , the more you will meet impasse

The more you ask linear questions , the more you will meet impasse

The more you use free storytelling rather than ask questions , the less you will meet impasse

The more you consider emotional data to surface unmet needs and concerns , the less you will meet impasse

The more you focus on empowerment and recognition , the less you will meet impasse

The more you are aware of the micro dynamics in the mediation room, the less you will meet impasse

The more you accept yourself as part of the process (subject – subject) and not just observer (subject – object) to the process, the less you will meet impasse

The more you are aware of the impact of your behavior in context of empowerment and recognition , the less you will meet impasse

The more you free yourself from own agendas , the less you will meet impasse

The more you are able to empathize (not sympathize) with the contrasting facts, feelings and values of the parties in turns, the less you will meet impasse

The more you are able to skip hypotheses, the less you will meet impasse

Afghan palace lacking mediation ©hansboserup@gmail.dk www.mediator.dk 2007

So many beauties of cultural values to draw on inside Afghanistan ©hansboserup@gmail.dk www.mediator.dk 2007

Once Afghanistan was known for the Moguls’ beautiful gardens ©hansboserup@gmail.dk www.mediator.dk 2007

… And for millenniums of skilled pottery ©hansboserup@gmail.dk www.mediator.dk 2007

The more you realize that no questions are innocent , the less you will meet impasse

The more you use circular questions, the less you will meet impasse

The parties’ attorneys can break and create impasse

The more leaned back the parties’ attorneys are in the first half of the process, the less you will meet impasse

The more you manage to strike the right balance of attorneys ’ active involvement , the less you will meet impasse

The less you challenge the view of an attorney, the less you will meet impasse

Afghan Minister of Refugees Dr. (psychiatry) Dadfar (trained in Germany) discussing traumatized parties ©hansboserup@gmail.dk www.mediator.dk 2007

Pick the impasse breaking strategy from each of the different styles and paradigms

The ” generic ” style app. 35 years old

Other styles seen as reactions to one another – Styles presented below

The different styles overcome deadlocks and impasses in different ways

Characteristics

What characterize the difference between the styles of mediation ?

Some of them deals very differently with dilemmas in mediation:

Neutrality

Autonomy

Power balance

Mediator influence / control

Mediation ©hansboserup@gmail.dk www.mediator.dk 2007 A way to solve insolvable conflicts so all parties feel better

Afghan children learning about mediation in open air school ©hansboserup@gmail.dk www.mediator.dk 2007

Ideas behind mediation

Looking at conflict as a potentiality

Take starting point in experience of the parties

Having confidence that the parties have what it takes

Create an environment for feeling better -solutions

So many Perceptions of mediation ©hansboserup@gmail.dk www.mediator.dk 2007

Content

Why different styles ? Why different approaches to deadlock and impasse?

There is a different paradigm behind each different style and approach

The individual styles are connected to a variety in

epistemology

psychology

sociology

organizational theory and

communication / linguistics

6 mainstreams

Generic style (1970)

Settlement driven style (1980)

Cognitive systemic style (1980)

Transformative style (1990)

Humanistic style (1990)

Narrative style (1990)

Existence’s dimensions

In conflict it is habitual only to deal with the physical universe from rational reflections

Thus you cut off approximately half of the parties’ dimensions

More dimensions

Existence's (for the time being) perceived dimensions

©hansboserup@gmail.dk www.mediator.dk 2007 Physical Rational Emotional Spiritual

Teaching Giraffe and how to summarize what you just heard ©hansboserup@gmail.dk www.mediator.dk 2007

The generic style

The generic style of mediation is app. 35 years old

The style is grounded also in emotional experience in contrast to just cognitive experiences

Which school (or schools) of epistemology , ideology and psychology may you connect this style to?

The generic style

Aims towards

1) agreement

2) empowerment and

3) recognition

in contrast to a main focus on just one of these components

Communication happens part of the process via mediator and not directly between the parties

Structured in stages – necessary to finish one before moving to the next

Generic mediation is not for everyone ©hansboserup@gmail.dk www.mediator.dk 2007

A conversation in 5 stages

Stage 1: Free storytelling

Stage 2: The parties are defining the issues

Stage 3: The parties brainstorm options

Stage 4: The parties select and negotiate solutions

Stage 5: The parties enter into agreement

Stage 2: Defining the issues / tasks 1

Parties and mediator surface positions, interests, needs and concerns

Positions

Interests

Needs and concerns

Mediator ask the parties to make out what have surfaced of:

Facts

Interests

Emotions

Needs

Concerns

Occasionally you must draw on rehabilitation centers when parties are traumatized ©hansboserup@gmail.dk www.mediator.dk 2007

Are the former inhabitants of this house now your neighbors? ©hansboserup@gmail.dk www.mediator.dk 2007

Will she ever find herself again? ©hansboserup@gmail.dk www.mediator.dk 2007

And even professionals may become frustrated and exhausted ©hansboserup@gmail.dk www.mediator.dk 2007

Example of a definition of issues or tasks:

How may we develop a better relation to one another when in the future problems occur with the delays and at the same time reduce the problems as much as possible?

How can we be certain that remedy is obtained with greatest possible consideration of one another's interests - with greatest possible consideration of quality – and obtain the optimal communication between us in order to achieve a win-win solution with due consideration of respect and recognition to one another?

Stage 4: Negotiating options

The generated options are now subject to 2 tests:

A: Which option may solve the defined issues?

B: Which of the options surviving test A are the parties prepared to carry out ?

!!!! Why not the reverse order?

Generic style

This style is a stage model

Emotional experiences are regarded important

Focus on storytelling, interests, needs and concerns prior to defining the issues

Generic style

Joint sessions preferred over caucus (private sessions)

Free storytelling and active listening regarded important

The process are facilitative rather than evaluative

Intended outcomes are agreement, empowerment and recognition

Advanced dispute resolution (in problem oriented ADR)

Is about:

Empathy

Reaching agreement, achieve empowerment and recognition

Advanced communication

Advanced negotiation

Structure

Assistance from a third party

Interests and concerns habitually tend to be expressed though positions (in problem oriented ADR)

In conflict satisfaction is normally expressed in terms of positions

Thus it is difficult for the parties to find common ground

However parties contain ability to break down positions into interests, needs and concerns providing much more opportunities to explore common ground

Common ground may by the parties be experienced as a key to solving their conflict

Advanced negotiation – The pyramid (in problem oriented ADR) ©hansboserup@gmail.dk www.mediator.dk 2007 Positions Interest Needs/Concerns

Positions – Interests - Needs

Behind any position the parties will find a particular interest

Behind any interest the parties will find particular unmet needs or concerns

Any need or concern can be regarded as an interest behind which other needs and concerns are hidden

The further the parties explore the depth of the their needs and concerns the more they are likely to explore common ground

Overlapping pyramids ©hansboserup@gmail.dk www.mediator.dk 2007 Positions Interests Needs

Do you recognize the situations? ©hansboserup@gmail.dk www.mediator.dk 2007

Everyone Can Win ©hansboserup@gmail.dk www.mediator.dk 2007

Settlement driven style 1

This style is a stage model (shaped by lawyers and decision makers) an a mutant of the generic style

Emotional experiences are regarded important provided there are space for them

When the issues are defined, - focus is on interests, needs and risk assessments

Private sessions (caucus) are habitual

Information gathering rather than free storytelling or active listening

Space for both facilitative and evaluative approach

Intended outcomes are agreement on transactions or a plans for transactions

What are the positions?

Defining the issues (normally in caucus)?

Gathering relevant information (normally in caucus) rather than free storytelling

Identification of interests, needs and risks (normally in caucus)

Re-defining the issues (normally in caucus)

Brainstorming in caucus

Bargaining (normally) via mediator

Agreement

Try to imagine what the pictures are trying telling you ©hansboserup@gmail.dk www.mediator.dk 2007

Cognitive style 1

Often inspired by a systems approach - the Milan School

This style is a cycle model – repeated cycles whenever a problem occurs

Defining the issues

Information gathering of relevant information rather than free storytelling

Normally joint sessions

Cognitive style 2

Defining the issues – mutualizing

Gathering relevant information

Re-defining the issues

Emotional data not regarded as useful data

Circular questions, strategizing , hypotheses , neutrality (domain theory)

Aims of the process are agreement , empowerment and recognition

Transformative style 1

Statements from the mediator replaced with conversation on how the parties want to go through the process

This style is a cycle model – repeated cycles whenever a “situation” occurs

Focus on situations (not on problems) of lack or emerging empowerment or recognition

Important constantly to focus on how the parties feel to be in the process right now and focusing on whether they feel a need for any changes

Transformative style 2

Joint session the habitual

Free storytelling and active listening

Reflections and summarizing

Go with the flow, – follow the parties around, – not managing the process but encouraging a conversation of what to do now – Go with the flow even if that means summarizing differences and not just common ground

Intended outcomes are empowerment and recognition

Robert Baruch Bush presenting transformative mediation in Copenhagen ©hansboserup@gmail.dk www.mediator.dk 2007

Terminology

Empowerment and recognition regarded as a movement from a relative weaker feeling/situation towards a relative stronger feeling/situation

Empowerment

Empowerment is this movement :

Unsettled  Calmer

Confused  Clearer

Fearful  More confident

Disorganized  More focused

Unsure  More decisive

Recognition

Recognition is this movement :

Uncertain about context  Understanding context

Self-protective  More attentive to other

Defensive  More open

Suspicious  More willing to accept other’s good faith

Incapable of stepping

outside own frame  More able to see other’s perspective

Encourage the parties to talk about

What is the context (How do we want to do this?)

Exploring the situation – sharing perspectives (What is this about?)

Deliberating (What does this mean?)

Exploring possibilities – developing ideas (What is possible?)

Decision -making (What do I / we do?)

Assume that the parties occasionally realize that they look like this ©hansboserup@gmail.dk www.mediator.dk 2007

So many agendas to recognize ©hansboserup@gmail.dk www.mediator.dk 2007

Humanistic style 1

This style is a stage style (inspired by the generic style)

Emotional experiences regarded important

Important that the parties identify needs, concerns and interests

Important to separate the “stuff” of the parties from the “stuff” of the mediator

Humanistic style 2

Storytelling in private preparatory meetings

Parties defining issues in private preparatory meetings

Parties defining context in private preparatory meetings

In private sessions the parties are prepared to walk the talk in joint sessions – active listening and free storytelling

Humanistic style 3

Reaching understanding of impact on others lives

In joint sessions the mediator tends to take a more leaned back role

The parties are encouraged to communicate directly with on another

Developing transactions

Intended outcomes are understanding, learning, taking responsibility, empathy, reduction of fear and anger, improving the level of mood, empowerment and recognition

Every child across the Globe have feelings , hopes and unmet needs ©hansboserup@gmail.dk www.mediator.dk 2007

Narrative style 1

This style is a systemic stage model

Feelings and emotions regarded important in the context of interaction

Focus is on context and interactions rather than on needs, concerns and interests

Active listening and free storytelling

Re-constructing listening and circular questions

Focus on dominant and alternative discourse

Narrative style 2

Elements and functions of layers and context in stories regarded important

Focus on elements in the conflict-saturated story and their functions

Deconstructing the conflict-saturated story

Changing the epistemology of the individual into a reconstruction of an alternative common story important

Narrative style 3

Questioning ownership to the conflict story

De-constructing entitlements to the context and the labeling of describing terminology adopted by the individual party and emerging of a new and common story

Intended outcomes are understanding , agreement, empowerment and recognition

Structure

Storytelling

Engagement and context

Deconstructing the conflict-saturated story

Constructing the alternative story

Agreement

Terminology 1

Inside the mediation movement’s terminology certain terms have a very distinct meaning

Empathy and assertion not regarded as competitors but rather as complimentary components

Terminology 2

Empathy regarded as the ability for a moment to leave own values, background, experiences and assumptions, - and for a moment to live within the party’s values, background, experiences and assumptions

Terminology 3

Assertion regarded as ability to:

Identify own needs

Communicating these needs in such a clear way that the other empathizes with them

Communicating these needs in such a clean way that the other is not brought into a mode of defense

Is compromise a solution?

In mediation compromise is not regarded as a lasting or sustainable solution

Ambition in mediation is to make the parties develop maximal empathy and assertion , making the parties realize what are needed and what they can live without

Emotions

The affective grounded processes regard the emotional experiences as shortcuts to identification of unmet needs and existing concerns

Mediation is not therapy , and the intended outcome is not behavior changing

Basic emotions

My experience has made me identify 4 frequent occurring emotions in the mediation process (any other emotion can be regarded as a medley of these basic emotions) :

Delight / absence of delight

Pain / anguish

Insecurity / fear / anxiety

Loss / sorrow / grief

Shortcuts to unmet needs

Being in pain you have a need for …?

Feeling insecurity you have a need for …?

Facing loss or feeling sorrow you have a need for …?

The styles of mediation 1

In the generic style emotional experiences are regarded useful data

In the settlement driven style emotional experiences are regarded useful data given that there are room for them. However risk assessment has a higher priority

In the cognitive (often systemic ) style decision making is regarded important

The styles of mediation 2

In the transformative style interaction/relation is emphasized rather than transactions

In the humanistic style direct dialog and preparing the parties for this direct dialog is the important topic

In the narrative style context and deconstruction of the conflict-saturated story it is regarded important

Affective or cognitive grounded mediation 1

The affective grounded mediations believes that emotional experiences are important because:

They are shortcuts to unmet needs and concerns

Ventilation of emotions often reduces the obstacles for the outlook to common sense

Improving / affirming self-worth - empowerment

Affective or cognitive grounded mediation 2

Cognitive mediation having concerns that emotional data will keep the parties stock into their past

Some parties feel uncomfortable using feeling mode or words

Some parties haven’t got the ability to put words on their emotions

Some parties emphasizing efficiency prefer cognitive mediation, because the style focus on decision making

Process oriented or settlement driven styles of mediation

The process oriented style emphasize autonomy of the parties, the parties’ are controlling the process and the direction of the process

In the process oriented style the parties are encouraged to deal with the underlying conflict environment too

The settlement driven style emphasize achieving an agreement never the less this requires a certain amount of push from the mediator

Information gathering or free storytelling

It is habitual for us to get information by asking questions

However the most efficient way to get information to the table is asking as few questions as possible

Use active or effective listening instead of questions – thus you don’t limit the options of information into certain tracks or scopes

If you have to ask questions then weigh every word

Questions may be dangerous

Questions may lead

Questions may lead to confrontation

Questions may influence

Questions may make the party stick to his understanding or freeze him/her

Questions may make the mediator stick to his/hers prejudices

Intentions behind questions

Examining intention

Correcting intention

Exploring intention

Facilitating intention

Effects of questions

Make the party stick to his understanding or freeze him/her

Make the mediator stick to his/hers prejudices – stimulating confrontations

Liberating/stimulating

Stimulating accept or creativity

Active listening when you are the third party

Main focus is on making the party talk – not to talk about a given issue

Stimulate to reflection

Summarizing followed by a break ( pause) is a sophisticated way (and strategy) of getting information to the table

Restating followed by a break ( pause) is a sophisticated way (and strategy) of getting information to the table

Active listening when being the mediator

Summarizing, reflecting and restating followed by a break is a way of getting information to the table and providing space for the party to talk about any issue being on his/her mind

Surfacing feelings - emotions

Questions when you are the mediator

If you feel that you cannot do without questioning then let the questions be open -ended and circular (there are only few excuses for not being empathic )

So what you are saying is …?

Please tell me whatever is on your mind?

Can you tell more?

Help us out here to understand (or clarify for us)!

Circular questions (requires practice and knowledge) 1

Consequence : How doe’s the problem influence the surroundings and reverse?

Re-framing : Is it possible to view the problem from an other's angel (probably positive intention)?

Advantages and disadvantages : Advantages and disadvantages by not solving the problem

Circular questions (requires practice and knowledge) 2

Miracles : Given that the problem is solved, how will you know that the problem is solved?

Proportions : What may do the problem heavier? How come that it is not heavier at this point??

Exception : When was this problem not a problem?

Perspectives : How would you like to look back on the problem solved? What would you advice if asked for advice in a similar situation ?

Logistic

Too many mediators and sponsors are focusing on the macro dynamics: Legislation, sponsoring, neutrality, impartiality, certifying etc.

The experienced mediator is aware that the personality/performance of the mediator and the micro -dynamics are the important components

Examples of positive and negative micro dynamics

Check-Outs

Circular Questions

Clarifying the Denial of Recognition

Confrontation

Directives to Elaborate

Evaluation

Interpretations

Key-Word Encouragers

Meta Conversation

Minimal Encouragers

Mutualizing

Normalizing

Open-Ended Questions

Paraphrases

Paraphrasing a Request for Recognition

Parroting

Process Observations

Prompting Questions

Reassurance

Reflecting Content

Reflecting Feelings

Reflective Questions

Reframing

Request to Elaborate

Separating Double Massages

Suggestions

Summaries

Tracking Questions

Mediation is founded on

Empathy

Understanding

Change

But be aware of personality!

Empathy

Anxiety

Aggression/stubbornness

Thanks for your attention

Yours truly

Hans Boserup

Advanced Mediation Boserup

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