This article was published as a chapter in Definitive Creative Impasse-Breaking Techniques in Mediation, Molly Klapper, J.D., Ph.D., Editor, New York State Bar Association, 2011.
American business culture discourages emotional communication and places a high value on rational communication. Yet the vast majority of cases brought to mediation have a significant emotional component.
The manufacturer is angry because he feels his supplier has cheated him.
The marketing manager is frightened she will lose her job when she pursues a gender discrimination complaint.
A partner resents the deal his counterpart has negotiated without his consent.
A factory worker is humiliated because his supervisor regularly yells at him in front of his peers.
The terminated employee is scared that what lies ahead is foreclosure.
The supervisor is confused because what he believes was affirmation, his shop foreman is calling sexual harassment.
The caterer dispairs that his reputation will be ruined by the disgruntled client.
Even advocates fear for their reputations if they fail to negotiate reasonable settlements on behalf of their clients.
Overlooking, ignoring or minimizing the emotional component in mediation can certainly lead to impasse. By framing the problem only as a substantive dispute, mediators may limit options for resolution. On the other hand, exploring possible emotional factors may provide real clues for avoiding or working through impasse. Jean Paul Lederach, Professor at the Joan Kroc Institute of Conflict Studies at the University of Notre Dame, likens the presenting issues in a conflict to a window; important, for sure, but once in place, “We rarely look at the window. We look through the glass, focusing on what lies beyond.” (Lederach, Jean Paul, The Little Book of Conflict Transformation, Good Books, Inc., 2003 p. 49).
An early mentor of mine, coordinator of a federal mediation program, advised me not to be alarmed if issues surfaced which were not stated in the complaint. His experience had taught him that it is often the emotional, not the legal, issues that provide the basis for resolution. Many advocates in my mediations have pointed out in caucus that the opposing side has not mentioned the actual discrimination complaint, upon which the suit was based. I’m used to it now. The alleged discrimination is what gets complainants in the door, but it is not always what is troubling them.
Consider the case of the CEO who, after two years of what he characterized as a disappointing performance, fired his 54-year old VP of Marketing. The VP filed a complaint with the Equal Employment Opportunity Commission, alleging age discrimination. While he had subsequently relocated to a distant city, he flew in for the mediation. The two gentlemen had not seen each other in several months. Each was very cautious with the other. There were no attorneys present, an anomaly in these kinds of cases. The former VP spoke eloquently about what he had done for the company. He detailed several re-organization projects which he said he had completed successfully. He talked about his management of staff. He reminded the CEO of a large account he’d been responsible for bringing into the firm. He said he didn’t think the termination was warranted and had concluded it could only have been age-related. He wanted his old position back. The CEO insisted the termination had nothing to do with age. He reminded the former VP that they had lost a huge piece of business because it had been mismanaged by him, several projects had been late and some staff had resigned or requested transfers because of disorganized management. He repeated that the termination had nothing to do with age and pointed out that many high-level executives in the company were of comparable age. He said that he was really sorry. He was not willing to put the business at risk by re-hiring the former VP.
Each clung to his position for some time. The mediation seemed to be going nowhere.
Despite their disagreement on most points, there was something in the dynamic that made me comment, in joint session, that they seemed to know each other very well. The change in the room was sudden and palpable. The CEO said that it was true; that he was the godfather of the VP’s son. The VP said that he and his wife used to get together often with the CEO and his spouse. They began to ask about each other’s families. The CEO asked how the VP was doing in his new home. The VP laughed about his wife decorating the new house, when the CEO asked how the move had gone. When they got back to the issues at hand, the CEO explained very earnestly how difficult it had been for him to terminate his friend. The VP nodded in understanding and then acknowledged some costly mistakes he had made.
He did not get his job back. Ultimately he withdrew the complaint and the CEO ended up driving him back to the airport. Not the work relationship but the personal relationship, which turned out to be far more important, had been restored. At the end of the mediation, the two began to make plans to get together in the near future. In retrospect, I think the fact that neither brought a representative to the table provided a clue. These two high level executives both elected to have a conversation about a discrimination charge together without the backup of attorneys. I think that said a lot about their relationship. On a hunch, I explored that relationship and as a result, impasse was averted.
When confronted with apparent impasse, how can we surface those emotional issues? What are some of the clues for us to watch out for?
Obsession with position. We see this all the time, of course. Yet, when a party has dug into a position (“$1,000,000 or we go to court.”), it’s time to examine the context. What led him to that number? Why is it so important? What happened that made him so adamant? What about the other person’s behavior or position was so devastating that it drove the party to dig in? An attorney-mediator tells the story of a mediation involving a construction project. An established contractor had completed a large residential project for a wealthy client. The client was not satisfied with the work. The two met in mediation. The client blustered around, boasting of his influence and his authority in the community. He accused the contractor of cutting corners, suggested he had been cheated and demanded that the job be done over at no cost. The contractor responded very angrily that he had been in the business for many, many years and his work and his reputation were undisputed. He talked about a number of high profile construction projects he had worked on and the consistent satisfaction of, and repeat business from, his clients. Back and forth they went debating about the quality of the work, the reputation of the contractor and the influence of the client. Because there was some cost information missing, the parties agreed to adjourn for a week until the required information was obtained. After a few preliminaries at the next meeting, the mediator met separately with the parties. In caucus, he asked the client if he really thought the contractor was a crook. The client admitted that he didn’t and said that in fact, he had hired him because of his reputation. He just had a problem with one aspect of the work which had been done by a subcontractor. The mediator asked if he could share this with the contractor, explaining that he thought it might be helpful in moving the mediation forward. The client agreed. When the contractor heard that the client actually thought highly of him and had hired him for that reason, he quickly acknowledged that there might have been some mistakes made. He cared about his work and he wanted the client to be happy. The case settled. Indeed, one of the remarkable things about touching on the underlying emotional issues of a party—in this case, the pride in the quality of one’s work and the importance to him of his reputation—is how effective it can be in quickly turning around a mediation.
Non-verbal signals. When a party rolls his eyes, sighs deeply or turns away, that is information. When we reflect what we have seen or heard in these cases, very often we discover the emotional content behind the behavior and in so doing, may avoid impasse altogether. Surfacing that may very well effect change in the other party’s behavior also. In one case I commented on a non-verbal communication: “Mike, I noted you sighed pretty heavily when Charlie alluded to frequent absences,” and waited to see what the response might be. In this case, Mike had tried on several occasions to set up an appointment with his supervisor to talk about those absences and the supervisor had not gotten back to him. Mike was less concerned about the suspension than he was about being ignored, it turned out. When his supervisor understood what was actually going on, he admitted he had not been as available as he should have been and he agreed to be more responsive in the future. Soon thereafter, the parties came to an agreement.
Cultural differences. Sometimes what holds the parties up is a culturally-based difference in acceptable behavior. Another mediator tells the story of a dispute between a European and an American firm. The European firm licensed some sophisticated manufacturing technology to the American firm. The European firm refused to renew its licensing contract after several years with the American firm, causing it to fall seriously behind in its production schedules, losing significant revenue. The American firm sued the European firm for lost revenue. When the parties met in mediation, the mediator was unable to identify any substantive reason for the cancellation of the contract, although the European firm remained adamant that they would not renew, and offered a low figure to compensate for alleged loss of business. In caucus, the mediator asked the European firm’s negotiator why he was so adamant about not ever working with the American firm again. It was then he discovered that the American firm had tried to buy away the chief engineer of the European firm. Although the engineer had refused the offer, he reported it to the head of the company. “We are family. We have worked together for generations,” explained the negotiator. “This is unacceptable behavior. We will never work with them again.” With permission, the mediator shared this with the American firm, also in caucus.
Initially the American negotiator dismissed this as insignificant (particularly since the engineer had turned them down). However the mediator was able to explain that for the European firm, this was unforgivable and the negotiator soon realized he was not going to get what he wanted. He significantly reduced his demand for compensation and the case ultimately settled.
While raiding a company for its top employees may never be considered charitable, in this case it was highly offensive. Had the mediator not probed to find out what was holding the parties up, it is unlikely they would have been able to move beyond their impasse.
Withdrawal. When one party is more or less silent and withdrawn, reflecting back that silence and giving the party an opportunity to explain what’s going on may be very helpful. He may be seriously depressed or resigned that the behavior he’s protesting is never going to change or terrified that he’s going to lose his job and afraid to speak or any number of other things. If we don’t ask, if we don’t explore, we won’t know. And if only one party is speaking, the mediation is, in effect, stalled, anyway!
Excessive aggression. Sometimes parties storm out of the room or pound their fists on the table. At the risk of stating the obvious, there are real emotional issues behind that kind of behavior. There was a case where a Nursing Home sued an elderly infirm resident and her two adult children, who were guarantors, for non-payment of fees. Since there was no issue about the amount which was owed, the mediator believed what needed to be done was determine a payment schedule for the back fees without bankrupting the two siblings. He saw it as a simple, straight-forward case, an easy settlement. Yet one of the children adamantly refused to consider such a process. He became quite irate and at one point stormed out of the room. When the mediator was able to speak with the son subsequently, he learned that the legal papers had been served directly to the son’s mother at the Nursing Home. The son could not get over the fact that the Nursing Home, theoretically highly qualified at dealing with elderly residents, would do such a thing. That this was a standard legal practice did not change his point of view. Only when the Nursing Home acknowledged they might have handled this better, i.e., letting the guarantors know this was going to happen and serving the papers while one or both of them was in their mother’s room, was the mediator able to get through this impasse.
Defensiveness. Often when a party denies the accusations too vigorously, there’s something driving that indignation. William Shakespeare got it right in Hamlet, when he gave Gertrude the famous line, “The lady doth protest too much, methinks.” Probe. Why outrageous indignation? Is it fear of exposure? Is it a belief that if he makes enough noise he’ll intimidate the other party into giving in? Is it exercise of selective memory? What is going on?
What are some steps mediators can take to move past impasse when emotional issues seem to be a factor?
Trust your instincts. If something feels uncomfortable, unsaid or just missing, dig. You may very well prefer to do it in caucus. Some people are not comfortable opening up right away and chatting about their feelings. Yet that does not mean they aren’t there. And it doesn’t mean they aren’t important. Probe. I often will tentatively comment, “I have to say it feels like something is missing. There’s an issue that hasn’t surfaced yet. Correct me if I’m wrong, but….” And then I wait for an answer. If they look at me in amazement, then I let it go. But frequently, one or the other will admit that there’s something else eating at him that hasn’t been addressed.
Put yourself, cautiously, in their place. “I know if I lost my job, I would feel (fill in the blank).” And then wait for a response. When you feel anxious about doing this, keep reminding yourself that when people harbor unexpressed feelings, they can’t really listen well. That’s certain to lead to impasse.
Acknowledge emotions when they are expressed. Again, feelings are information. Acknowledging them is a way of saying, “I have heard what you said.” Moreover it is an indication that you, the mediator, do not think feelings are irrelevant. In a culture that frequently minimizes the value of emotional communication, this can make a huge difference. Reflecting the feelings also allows the other party to hear them from a neutral voice. My own experience has taught me that frequently that neutral voice may help the other party acknowledge that his own position may be a little harsh or may have been over-stated. Or even that he had totally misunderstood and was operating on a totally different assumption.
Coach the parties, if it feels appropriate. Frequently, one party feels he has lost face in front of his colleagues. In many of my workplace cases the issue is clearly how one person has spoken to another. The suspension, reduced overtime or pass-over for promotion is often less important than how the supervisor spoke to the employee in front of his peers. Helping the supervisor understand how the employee feels, possibly encouraging him to acknowledge that feeling, may move the mediation forward.
Test your own assumptions. Douglas Stone, Bruce Patton and Sheila Heen, in their book, Difficult Conversations, write “Certainty locks us out of their story; curiosity lets us in.” I assumed the VP was mad because he’d lost his job. I was wrong. He was sad because he’d lost a friend. If I hadn’t made the comment about the two knowing each other for a long time, that never would have surfaced and they might have walked out the door totally frustrated and un-reconciled.
Have parties switch seats, metaphorically, or actually. Ask them to articulate the other’s positions and feelings. The truth is, if a party is angry and frustrated because he or she doesn’t think the other party is hearing what is being said, you may find yourself at an impasse. By getting each to articulate the other’s point of view, you may help them to overcome that certainty and move on. I experienced the effectiveness of this personally. As one of a number of owners of a company many years ago, I found myself in disagreement with a partner. One of the other partners literally asked us to switch seats at our meeting and be the other person. But once I articulated my partner’s position and her reasons for feeling as she did, I discovered it wasn’t as uncomfortable a choice as I had originally thought. We moved through the disagreement quickly after that.
When I speak of the importance of emotions in mediation, colleagues often ask me how I distinguish what I do from therapy. My answer can only be that while I am not a therapist, some of what goes on in mediation may very well be therapeutic. If I can help parties avoid or get through an impasse by exploring underlying emotions, I will do it because I believe that very often it is just those emotions that cause impasse in the first place.
Certainly, there are intractable parties. Dealing with impasse is always tough. By searching for and paying attention to underlying critical feelings, however, mediators give the process a fair chance.
Stone, Douglas ,Patton, Bruce and Heen, Sheila, Difficult Conversations, Penguin Books, 1999, p. 37
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