“Ring the bells that still can ring
Forget your perfect offering
There is a crack in everything
That’s how the light gets in.”
—Leonard Cohen, “Anthem”
Most novice and experienced conflict mediators alike feel themselves viscerally tighten in the face of an impending impasse. The prospect of the parties in a dispute becoming locked up and unable to reach an agreement raises the ugly specter of failure for the practitioner who purports to offer a better way to manage conflict. A fair amount of time and energy is devoted to studying the barriers and resistance to settlement and analyzing and avoiding impasse. Many would seek to distance themselves from the unpleasantness of a lost mediation with self inoculations such as; “the parties’ are responsible for decisions, not the mediator.” While the words carry a measure of truth, they can still ring hollow, and feel perilously close to an excuse for failure.
If a practitioner does not feel unsettled by impasse and the risk of a conflict being unresolved, he or she may lack sufficient passion and be in the wrong line of work. At the same time, if one is to do this work regularly, as a matter of self preservation and necessity, a practitioner must come to terms with the prospect of impasse as a constant companion that must be acknowledged. The choice is not whether or not such a circumstance will occur, but when, and how the mediator will deal with the situation. For a mediator an impasse is not unlike landing and taking off for an airline pilot: they will always be inherent hazards. Our cultural conditioning when dealing with conflict in general and an impasse in particular, is to view it as a threat to be fought and conquered. We are programmed to solve the problem as quickly as possible. The less common approach is to approach as a constructive and useful juncture in the problem solving process—-“a crack where the light can get in.”
Some impasses can be anticipated, others are not predictable and can come out of nowhere when least expected, cropping up over a detail of seemingly little consequence that quickly escalates into becoming a deal breaker. Personality, style, value clashes, scarce resources are obvious sources. External factors, such as, politics, or laws and policies, can also foment an impasse. And, in an increasingly complex world, where “wicked” and intractable economic, health and environmental conflicts, to name but a few, are the rule, the occurrence of impasse is almost a given. Just defining the issues, let alone delineating the available options, is a daunting task. The sheer quantity of “unknown-unknowns,” the heightened risk of unintended consequences regardless of the chosen course of action, the intellectual and emotional energy required, coupled with a lack of resources, can be overwhelming. The risk, uncertainty and threat posed by an impasse, real or imagined, can be immobilizing and easily incite parties to retreat into ideological positions.
One of the most troubling sources of impasse, however, is the mediators’ or negotiators’ self imposed limited thinking and failure of imagination in dealing with the matters at hand. (Benjamin, R.D., 2007) This source of impasse, while arguably more manageable, is often overlooked. How a practitioner chooses to structure the process and their style or approach to problem solving can limit or expand how creatively and effectively the parties are encouraged to think about the problem and alternatives. More times than I would care to admit, I have gotten in my own way.
My training and inclination was to think of an impasse as an aberration and difficulty to be fixed or cured. Some years ago I was lucky enough to have one of those all too rare moments of insight that suggested a different approach. A business dispute, the nature of which is relatively familiar to many conflict mediators, was a beginning point for my chastening.
After more than four hours of working with two business partners, engaged in seemingly useless wrangling, they were clearly stalemated and we were all more than a little frustrated. Countless options has been considered and rejected as to how one partner might be able to maintain the cash flow necessary to keep the business operational in the face of the other partners desire to retire because of the onset of an unexpected serious illness. He desperately needed to retrieve his equity and capital investment in the firm to financially survive. All efforts to devise a workable pay out scheme withered against a profit margin that was thin in the best of times. Discussions were all the more emotionally heated because of the partners cross allegations betrayal and the dissipation of assets. Such disputes as this are seldom just a question of money; just focusing on the business aspects would not work. Both of the parties was convinced the other had acted in bad faith, and was unreasonable and untrustworthy. Neither saw any alternative except to go to court and have a judge decide in a partition action.
Despite being the so called ‘objective’ third party, it was my necessarily unstated conviction that both of them were being inflexible and silly to a fault. However, all my efforts to use reason, to gently, and not so gently, remind, chide and persuade them that no cost-benefit analysis supported their apparent decision to go to court, were met with only faint nods and the quick return to argument. Thoroughly frustrated and out of ideas about how to proceed, I stopped the session.
As they proceeded to gather their papers, my parting instructions were to go home, not talk to each other or even think about this mess until the next meeting. I faintheartedly tentatively scheduled that time, with little confidence it would happen. Personally, I was so exhausted towards the end of the session, that I remember having to fake even caring if this matter settled. Only out of sheer professional discipline was I able to pretend to be optimistic that we could reach an agreement. I could only hope my act was good enough to be believable.
To my surprise, they came back the following week. Out of the blue, one of the partners offered a proposal that, while unorthodox, formed the outlines of a workable agreement. I had no idea what I had done, if anything, for the shift to occur. What I am sure about is that whatever happened, it did so by chance, not by any intentional plan or design of mine. Since then, I have used the, “work hard-get frustrated-stop the session” technique, with some degree of success, to manage difficult circumstances and impasses.
I had suspicions about why the technique worked, but tended to keep quiet about the rationale. The explanation goes against my professional training and education and is counter-intuitive. On the few instances I did present it to others, the reaction from others has frequently been halting, if not outright antagonistic. As many professionals, I stumbled around for many years in the belief that effective problem solving was a strictly a rational affair, where one must think their way out of a problem. As a “neutral” mediator, I was supposed to manifest reason and calm, and certainly never display frustration. In the prevailing view, the mediator is the appointed problem solver and the occasion of an impasse, threatened not only the parties but my reputation. If early forays into the use of reasoned discussion did not work to convince people at odds or their errors in thinking, then clearly more logic and reason were called for. I had to be more methodical in developing and charting every option and doing a cost-benefit analysis of each.
Rational problem solving is an article of faith of our Western ‘techno rational’ culture, and not surprisingly, a core operating premise of the prevailing models of conflict mediation. Every culture has myths: stories of significance that people use make sense of the world around them. A myth is not a lie, but neither is it the truth. One of our most prevalent is the Myth of Rationality, the belief that there is always a best answer to every problem and that answer is discoverable by rational thinking and analysis. (Benjamin, R.D., 2003)
My approach to the business dispute was anything but rational in the conventional sense. What was clear in the moment was that while rational problem solving can be helpful sometimes, it is not sufficient in this matter at this time. In the face of impasse, logic may be the least effective means of convincing anyone of anything. To continue to assume more reason will work when using some has not worked, is simply unreasonable; only a ‘rational fool’ would continue on that course.
Managing an impasse rationally requires accepting the seemingly non rational premise that it was about less thinking, not more. Paradoxically, giving frustrated parties the permission to stop thinking about a problem offered an essential release from the duty to find the right answer, and allowed them the opportunity to ‘see’ the situation differently. Ironically, the insight that came to me out of frustration also happened for the parties out of their frustration in the business dispute I described.
While not about directly about conflict mediation, a compelling article in The New Yorker, “The Eureka Hunt: Why do good ideas come to us when they do?” by Jonah Lehrer, offers a more complete, coherent and rational explanation for this indirect and ‘irrational’ dynamic drawn from current studies in neuroscience. The implications are of critical importance for negotiators and mediators, given that the core of their work is in appreciating and understanding how people make decisions and solve problems.
If the premises are accepted as credible, then many of the prevailing core assumptions and approaches to conflict management practice may need to be reconsidered. Studies of how the brain functions would appear to compel a re-examination of the prevalent rational decision making and problem solving strategies, techniques and skills. At the very least, the notion of what is construed as “rational” may need to be broadened so as to include awareness of the essential intuitive processes that operate conjointly with analytical thinking for creative problem solving to occur. In light of these recent studies, what is clear is that logical and analytical thinking alone are insufficient and may be actually interfere with effective problem solving.
Lehrer opens with the description of a now legendary story that has become a case study for the occurrence of “insight.” The structure parallels my own experience, and I suspect that of many other practitioners as well. In a Montana wild fire in 1949, known as the Mann Gulch Fire, thirteen smoke jumpers died because they did what they were trained to do, and one firefighter survived, because he responded intuitively and did not do what was expected. Trapped at the bottom of a steep walled ravine, the wind suddenly changed direction and a wall of flames sucked up all of the surrounding air. Weighed down with heavy equipment, they tried to outrun the flames could not climb the steep grade fast enough and their escape was cut off. One fire fighter stopped running and, as Lehrer describes it, seemingly risking death, “..in a moment of desperate insight…” lit a match and ignited the ground in front of him and stepped into the shadow of the fire surrounded by a buffer of burned land. He survived by setting what is now known as an ‘escape” or “back” fire.
The Mann Gulch incident offers an opportunity for the careful review and systematic study of the circumstances that gave rise to the “insight experience.” This has offered a platform for the neuroscientific exploration, specifically, what is happening in the human brain. The potential is that insight might be brought about more by design and less by chance. It is noteworthy that Donald Berwick, a highly regarded expert in health care delivery, has similarly made use of the incident in his book, Escape Fire: Designs for the Future of Health Care, another significant wicked problem facing our society.
Many continue to believe that the manifestation of insight is a largely subjective occurrence that is mysterious and idiosyncratic, and unique to the personality of an individual practitioner. It is not thought to be easily susceptible to formal training and many courses and programs relegate the study of insight into the art of practice, not science. Now there is the strong beginning of that science.
Lehrer’s article describes the current work of Mark Jung-Beeman, a cognitive neuroscientist at Northwestern University. Studying the brain, he observed that the left hemisphere appears to be responsible for the functional denoting, or storing the primary meaning of a word or act, while the right brain deals with connotation, the emotional charge of the word or act. The brain, he observes, needs both functions to effectively “see the forest and the trees.” (p. 41). Interestingly, the emergence of insight can be inhibited by a pre-occupation with the denoting function; asking people to explain their thought processes logically. Termed “verbal overshadowing,” insistence on analysis shifts the brain functioning to the left hemisphere, ignoring the more subtle associations coming from the right hemisphere.
The dynamic interplay between the right and left hemisphere that Jung-Beeman observed is usefully relevant to conflict mediators. There is a mental balancing act that goes on as people focus on a problem. First, they need to focus on the details, be as logical as possible, and earnestly struggle with all of the “ifs, ands and buts,” to the point of exhaustion. Here is where fact gathering, cost-benefit analysis and option generation and testing come in.
The struggle sets the stage for the failure that allows the brain to relax enough to see other options. There is an “oh, what the hell—nothing works” response that actually frees the mind and allows for the more remote associations of the right hemisphere of the brain to provide insight (p 43). The release offered by the failure to solve the impasse logically, sets up a relaxation response that allows for insight and the emergence of other options hidden in plain sight. “The drowsy brain is unwound and disorganized, open to all sorts of unconventional ideas.”
Being overly pre-occupied with finding a logical solution, or forcing decisions to be made too quickly, can disrupt the brain relaxation necessary for insight to occur. “(T)his ‘clenched state of mind may inhibit the sort of creative connections that lead to sudden breakthroughs.” (p.43) Most of us recognize that some of the best ideas or thinking come to us in the early morning when we are half asleep, in the shower, or when our minds are wandering. This state of relaxation can be objectively charted and correlates with a steady rhythm of alpha waves emanating from the right hemisphere of the brain. Such activity makes the brain more receptive to new and unusual ideas. (p.43)
While neuroscience has begun to confirm this ‘non-thinking’ strategy that gives rise to insight, the notion is not new in realm of creative problem solving. Edward de Bono distinguished ‘vertical,’ or analytical thinking, from ‘lateral,’ a more free form associative form of thinking, noting that both are necessary for problem solving, more than 30 years ago and his work remains relevant. (Bono, E. de, 1970) And, the Pulitzer Prize winning poet, Howard Nemerov, observed that,
“If you really want to see something,
look at something else.
If you want to say what something is,
inspect something that it isn’t.” (1991).
One of the purposes of art, he notes in his book, On Metaphor, is to “see” reality differently. Conflict management practitioners might benefit from viewing art in order to learn how to view problems from outside the box—to learn how to think laterally. (Benjamin, R. D. 2007).
Many experienced negotiators and mediators have intuitively come upon this Zen-like understanding useful in the management of conflict. They have learned the importance of finding any ruse, excuse or reason to slow down the negotiation process so as to avoid the urge of the parties to ‘cut to the chase.” They have come to recognize that more effective decisions, not as susceptible to ‘buyers remorse,’ are available by not “holding parties feet to the fire” and pressing them to make decisions to quickly. This upside down thinking, the use of relaxation and time, along with logic and analysis, is merely a variety of ‘crazy wisdom.’ Doing what appears to be least rational and counter-intuitive, can sometimes be the most effective way to break out of confining patterns of thinking. (Nisker, W. 1990)
Impasse is not a block to problem solving, but rather a portal. In fact, in some circumstances, encouraging the occurrence of an impasse might be indicated and useful. Allowing, or even catalyzing the parties to move toward the point of frustration that is necessary to set the stage for them to relax enough for insight to emerge, might be done by design. The key is to remember that insight cannot be forced and letting the brain wander is essential. Lehrer relates an amusing story about the Nobel Prize winning physicist, Richard Feynman, who preferred the relaxed atmosphere of a topless bar, and if inspiration struck, scribble equations on cocktail napkins. (p.44) The trick is in balancing logic and analysis with mental ‘walk-abouts.’
For conflict mediators and negotiators, the implications of the neuroscience and the value of impasse should be apparent and several techniques lend themselves to the cultivation of insight and creative problem solving,
1. Consider your personal response to the prospect of an impasse. Think about how it is framed and how you might manage it. Is it a problem or an opportunity? Avoid trying too hard to solve the problem.
2. Avoid artificially imposed time constraints for decision making. Such limits are typically the product of a ‘rational’ model where the operating assumption is that if an issue cannot be settled in a set amount of time, it cannot be settled at all. While there are circumstances where ‘drop dead’ time limits are unavoidable and even useful, time frames typically heighten tensions and can bring about an avoidable impasse. Especially in difficult matters, maintaining an open time frame, allows people a measure of release. Not feeling compelled to make decisions too quickly, allows them to feel ‘safe’ enough to make decisions efficiently. Courts and other institutions that sponsor mediation programs are particularly susceptible to the risk of force fitting the negotiation or mediation process into set time frames.
3. Preemptively identify the prospect of an impasse if there are early and clear signs of it being likely to occur. Normalizing and de-sensitizing the parties to its’ probable occurrence reduces the potential disruptive effect. “We’ll likely get stuck when we start talking about money, no surprise. We’ll get through it.”
4. Move towards, not away from, an impending impasse. Consider encouraging a likely impasse to come about sooner rather than later. This allows for some assessment as to whether or not this is the real thing or just an unfounded fear and minimizes the threat.
5. Use the frustration generated by the impasse to advantage. In some instances, encourage the parties to become frustrated. Authentically encourage the parties to work hard to solve the problem. Gather information, generate, discuss and test options. If they are to become frustrated, do not resist, allow it to happen so that the full effect of “letting go’ can be realized.
6. Slow the process down. The more difficult the issue, the shorter and more frequent the session. Most people tire after approximately an hour and a half to two hours. Learn to recognize when the point of diminishing returns has occurred. The parties should be frustrated and exhausted, but it has to be ‘earned’ frustration.
7. Design “relax” time into the problem solving process. The parties, especially after being frustrated, need to take some amount of time to NOT to think about the problem. This is often missed. However, always set another in person meeting, if at all possible to “check in.” Leaving the process too open risks the parties slipping into a common pattern of avoidance. If the problematic issue continues, discuss other issues.
The prospect of impasse still has a threatening quality to it. Despite the neuroscience, I admit that I am not quite ready to be ‘joyful’ with the experience. However, the neuroscience does at least allow me to become somewhat more friendly with my demons. At the very least, impasse can be thought of as a good opportunity to move forward into creative problem solving. An impasse can be “the crack that lets the light in.”
Introduction Ways to settle disputes other than through litigation have increasingly received attention. Federal and State agencies have implemented alternative dispute resolution programs.[i] States contracted with community dispute resolution centers...By Daniel Renken