Mediation as Theater and Negotiation as Performance Art

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This article, originally published 20 years ago in 2002, despite its age, still offers some freshness in thinking about how to approach and manage controversies. It also usefully draws on insights and references from other disciplines that are directly relevant to the work of negotiation and mediation.

Most conflicts relate to circumstances or situations that have happened in the past – wrong treatment from a doctor, thoughtless behavior from a spouse, a car accident or a hostile workplace. The event elicits feelings that solidify into emotions of frustration, anger, or righteous indignation. By the time these conflicts are addressed in court or in a mediation session, the stories of what happened have been spun, edited and redacted in a way that supports and vindicates the emotions of each party and each will prepare a script , posing as the hero/protagonist/good person and assigning the other party the role of villain/antagonist/villain.

Most of the conflicts follow the structure of the original Passion Play, recounting the death and resurrection of Jesus. There is wrongdoing alleged, suffering endured, and the outcome of justice being served —- either by righteous revenge or by an act of God. For centuries it has been part of the oral tradition and dramaturgy of the Christian Church to reinvigorate the emotional basis of religious faith and belief. As with any play, the accuracy of historical facts is essentially unimportant; the drama serves an entirely different purpose, like an Oliver Stone movie. Likewise, mediation is about a present reality – the dramatic recreation of the conflict – and not about what actually happened. It is not only a theater metaphorically, but a theater in fact. Regardless of context, every conflict is a kind of Passion Play, whether it’s a divorce or a business dispute. This perspective offers insight into the nature of the conflict and the role of the mediator.

Conflict arises from the collision of passionate beliefs; dispassionate thinking hinders rather than helps manage conflict. For a matter to be a conflict, there must be an element of passion—even in seemingly fruitless business disputes that are presumed to be “just a matter of money.” The parties must believe in their role and in the justice of their case. Passion is rooted in emotion and therefore virtually no conflict, in any setting, at any time, is emotionless. Under these conditions, it is unlikely that a conflict can be managed solely by rational problem solving or by the “interests-needs” approach. The irrational passions of conflict must not only be tolerated but accepted and effectively integrated into the process. Although contrary to the conventional wisdom of our techno-rational culture that urges professionals to separate and isolate reason from emotion, Antonio D’Amasio has suggested in his work as a neurobiologist that our ability to reason is just as susceptible to be affected by lack of emotion as well as by excess. (Descartes’ error: Emotion, Reason, and The Human Brain, GP Putnam’s Sons, NY, 1994; and The Feeling of What Happens: Body and Emotions in The Making Of Consciousness, Harcourt Brace & Co., NY, 1999.)

Cool thinking, which is generally encouraged, can actually constrain and limit problem-solving ability and effectiveness. Especially in complex matters, what is required with the analytical method is agile thinking and a reliance on intuition, instinct and hunches – unconscious biases born of experience that lead in a particular direction. The drama of the conflict is made up of equal parts reason and emotion and both must be taken into account simultaneously for the play to continue.

The mediator is not a distant, neutral, offstage expert, but rather an active participant in the drama. The mediator, in fact, has several roles in staging the mediation process. He is a director, scenographer, screenwriter, narrator and sometimes character actor playing a supporting role. Although the drama is not his or hers, the mediator must evoke enough inspiration and passion to play the roles convincingly and authentically.

While seeming far removed from the practice of mediation, Constantin Stanislavski, the great Russian actor and director, offered in his now legendary book, AN ACTOR PREPARES (Theatre Arts Books, NY, 1936), important suggestions as useful to mediators as they have ever been for actors. The best actors are so studied in their technique that they can get carried away by the play without getting lost in it. They live their parts internally and rely on their intuition and subconscious – their trained instincts. In contrast, beginning actors—and mediators—often resort to mechanical acting, relying too much on elaborate templates and structures to replace real feelings. They tend to over-act as compensation for a lack of experience or training.

Even if the mediator acts, it does not mean that he is less authentic if he is genuinely engaged and involved in the reality of the current drama and engaged in the resolution of the conflict. While it is true that the mediator does not go home with the parties and does not have to live with the outcome, she must live with the quality of her preparation and the effectiveness of her performance. Just as the best actor must be able to transport an audience to a different reality, a mediator must be able to alter and reconstruct reality so that those in conflict have the opportunity to find a solution for themselves.

All negotiators, and especially mediators, are performance artists; within the context of carefully analyzed strategy, with practiced and disciplined technique and skill, they are able to improvise. The mediator – like the accomplished actor – is totally involved in the dramatic environment — intellectually, physically, emotionally or intuitively. Too often, the intellectual side of mediation is emphasized 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 freeze dramatic moments that shift the parties’ attention in conflict (think John Gielgud in Hamlet). But timing and presence cannot be taught; the mediator must choose to learn this intuitive sense of saying just the right words at the right time, without thinking.

Improvisation techniques and exercises are an actor’s way of learning intuition – to feel the role – and this preparation is directly useful to mediators. Viola Spolin in her classic work, IMPROVIZATION FOR THE THEATER, (Northwestern Univ. Press, Evanston, 1963) helps actors harness their ability to be spontaneous and intuitive, to work with the present moment. In his view, “mediation training” is a misnomer; good classes should be as much or perhaps more focused on “un-training” ourselves and learning how to reach that intuitive core, rather than teaching mechanistic techniques and formulas . 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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