Jonathan M. Hyman
Rutgers Law School
August 1, 2011
DEFINITIVE CREATIVE IMPASSE-BREAKING TECHNIQUES IN MEDIATION, Molly Klapper, ed., New York State Bar Association, 2011
Rutgers School of Law-Newark Research Paper No. 104
Impasse in mediation can arise on a fundamental level from differences in the cognitive frameworks within which the participants – and the mediator – think and act. I argue that people involved in mediation tend to speak and act in accordance with one of four qualitatively distinct mental frameworks: 1.) distributive compromise; 2.) creating new value through attention to underlying interests; 3.) relationship; and 4.) mutual understanding. Each framework tends to operate to the exclusion of the others. Talk and action appropriate for one can be badly out of place in another. When the mediator and other participants inhabit different frameworks from each other, impasse can result.
For the most part, these frameworks apply tacitly. They comprise four different heuristics with which to deal with the tasks of mediation. Moment by moment, and with little or no awareness or conscious control, each swiftly elicits framework-appropriate words and actions. But the frameworks also provide a way to deal with the very impasses to which they might contribute. Unlike the explicit “schools” of mediation thought, which they resemble, they do not necessarily persist throughout a mediation. Participants and mediators can flip from framework to framework in the course of a single mediation, and often do so. I argue that each framework is associated with one or more of seven different kinds of subject matters. Each of these subject matters – such as historical fact, law and legal rights, fairness and moral rights, what can happen in the future, feelings, and so on – is more characteristic of some frameworks than of others. Consequently, the degree to which a subject matter remains under discussion can show mediators which mental framework is most likely in play. Similarly, mediators can try to shift everyone’s thinking from one framework to another by steering the conversation to a different subject matter.