Mediation As Theater And Negotiation As Performance Art


by Robert Benjamin

This article was first published in the ACR (Association for Conflict Resolution) Family Section Newsletter, Fall, 2001.

March 2002

Robert Benjamin Most conflicts are about circumstances or situations that happened in the past—a doctor’s errant treatment, a spouse’s thoughtless behavior, an automobile accident, or a hostile work place. The event sparks feelings that solidify into the emotions of frustration, anger or righteous indignation. By the time those conflicts are addressed in a court or mediation session, the stories of what happened have been spun, revised and redacted in a way that supports and justifies each parties’ emotions and each will prepare a script, casting him or herself as the hero/protagonist/good person and ascribe to the other party(s), the role of villain/antagonist/bad guy.

Most conflicts conform to the structure of the original Passion Play, recounting the death and resurrection of Jesus. There is a wrongful act alleged, a suffering endured, and the denouement in justice being served----either by righteous revenge or an act of God. For centuries it has been part of the oral tradition and dramaturgy of the Christian Church to re-energize the emotional base for religious faith and belief. As with any play, the accuracy of the historical facts are essentially immaterial; the drama serves an altogether different purpose—like an Oliver Stone movie. Likewise, the mediation is about a present reality—the dramatic recreation of the conflict--- not about what actually took place. It is not just metaphorically a theater, but a theater in fact. Regardless of context, every conflict is a Passion Play of sorts, be it a divorce or business dispute This view offers some insights into the nature of conflict and the role of the mediator.

Conflict arises out of the collision of passionate beliefs; thinking dispassionately hinders rather than helps to manage the conflict. For a matter to be a conflict, there must be an element of passion---even in seemingly sterile business disputes that are presumed to be “just a matter of money.” The parties must believe in their role and the justness of their cause. Passion is anchored in emotion and thus virtually no conflict, in any context, at any time, is without emotion. With that being so, it is unlikely that any conflict can be managed purely by a rational problem solving or the “interest-needs” approach. The non-rational passions of the dispute must be not only tolerated but accepted and effectively integrated into the process. Although contrary to the conventional wisdom of our techno-rational culture which pressures professionals to separate and isolate reason from emotion, Antonio D’Amasio has suggested in his work as a neuro-biologist that our ability to reason is as likely to be harmed by the lack of emotion as by the excess. (Descartes’ Error: Emotion, Reason, and The Human Brain, G.P. Putnam’s Sons, N.Y. ,1994; and The Feeling of What Happens: Body and Emotions in The Making Of Consciousness, Harcourt Brace & Co., N.Y., 1999.)

“Coolheaded” reasoning, popularly encouraged, may actually constrain and limit problem solving ability and effectiveness. Especially in complex matters, what is required in along with analytical method is nimble thinking and reliance on intuition, gut instinct, and hunches— nonconscious biases borne from experience that lead in a particular direction. The conflict drama is composed in equal parts of both reason and emotion and both must be simultaneously accommodated for the play to go on.

The mediator is not a remote, neutral, off-stage expert, but rather an active participant in the drama. The mediator, in fact, has a number of roles in the staging of the mediation process. He or she is at once a director, set designer, script editor, narrator, and sometimes a character actor playing a supporting role. While the drama is not hers or his, the mediator must conjure up sufficient inspiration and passion to play the roles convincingly and authentically.

While seeming far removed from mediation practice, Constantin Stanislavski, the great Russian actor and director, offered in his now legendary book, AN ACTOR PREPARES (Theatre Arts Books, N.Y., 1936), important suggestions as useful to mediators as they have ever been to actors. The best actors are so studied in their technique that they can be carried away by the play without losing themselves in it. They live their parts inwardly, and rely on their intuition and subconscious—their practiced instincts. By contrast, beginning actors--- and mediators---often resort to mechanical acting, over relying on worked out stencils and structures to replace real feelings. They tend to over-act in compensation for a lack of experience or training.

Even though the mediator is acting does not mean he or she is less authentic if she is genuinely engaged and involved in the reality of the present drama and committed to the resolution of the conflict. While it is true that the mediator does not go home with the parties or have to live with the outcome, she does need to live with the quality of preparation and effectiveness of her performance. Just as the best actor must be able to transport an audience to a different reality, so must a mediator be able to tweak and reconstruct reality so that people in conflict are afforded the opportunity to find some measure of resolution for themselves.

All negotiators, and especially mediators, are performance artists; against the backdrop of a carefully analyzed strategy, with practiced and disciplined technique and skill, they are able to improvise. The mediator—like the accomplished actor—is totally involved with the dramatic environment----intellectually, physically, and emotionally or intuitively. Too often the intellectual side of mediation is stressed and the physical and intuitive dimensions are lost. The mediator needs a great comedian’s sense of timing (think Lily Tomlin in the Search for Intelligent Life in the Universe), and stage presence to create and congeal dramatic moments that shift the focus of the parties in conflict (think John Gielgud in Hamlet). But timing and presence cannot be taught; the mediator must choose to learn that intuitive sense of saying just the right words at the right time, without thinking.

Improvisational techniques and exercises are the way an actor learns intuition—to feel the role—and that preparation is directly useful to mediators. Virginia Spolin in her classic work, IMPROVISATION FOR THE THEATER,( Northwestern Univ. Press, Evanston, 1963) helps actors tap their ability to be spontaneous and intuitive—to work with the present moment. From her perspective, “mediation training” is a misnomer; good courses should be as much or perhaps more, about “un-training” ourselves, and learning how to reach that intuitive core, rather than teaching reliance on mechanistic and formulaic techniques. The difference between the good actor or mediator and the great one, is the ability to feel the rhythms of the unfolding drama.



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Biography




Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally. He is a standing Adjunct Professor at the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities. He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution. He is the author of numerous book contributions and articles, including “The Mediator As Trickster,” “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com.



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Website: www.rbenjamin.com

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