The Art of Impasse-Breaking in Mediation: A Book by David Hoffman

David Hoffman is a very highly regarded US mediator and an equally authoritative Harvard academic, whose writing about mediation and conflict resolution is always rich and thoughtful. Thus, his book about ‘The Art of Impasse-Breaking in Mediation’ promises much and it certainly delivers.

The underlying theme of the book is achieving fair, efficient, stable and wise solutions. Its aim is to enable mediators, lawyers and other conflict resolvers to fill their toolboxes with techniques for breaking impasses and help people to turn conflict into creative solutions - and to equip them to do the important work of peacemaking more effectively.

The book, written with Hoffman’s customary humility and respect for parties in conflict, is easy to read and full of helpful advice. It serves as both reassurance for experienced mediators, who will recognise many of the author’s suggestions, and an excellent resource for any mediator, whether starting out in practice or looking to add new strategies to their repertoire after years of experience. Hoffman is able to draw on his own years of experience to illustrate his points with pithy stories (his own and those of other mediators) and this adds greatly to the book’s utility. I also found the footnotes useful as pointers to further reading and as evidence of Hoffman’s deep understanding of the field.

Some of the most interesting and helpful earlier sections of the book deal with the emotional and psychological aspects of mediation – there is “no more important area for continuing education” - and the author’s frequent references to the Internal Family Systems Model emphasise how useful he finds this model in practice, to assist mediators in our understanding of, and compassion for, both parties in conflict and ourselves as mediators. It enables the mediator to handle the ambivalence experienced by many of those in conflict where both anger and pragmatism can be strong forces.

Encouraging parties to listen to their “inner mediator” to discover what they can live with enables “Self-led decisions” to be reached, consistent with mediation’s fundamental principles of empowerment and self-determination. I found the sections on Kahneman’s Thinking Fast and Slow, Jonathan Haidt’s The Righteous Mind and cognitive biases particularly helpful, together with the later discussion of Kahneman’s work with Amos Tversky on risk tolerance and risk aversion, in a chapter which also addressed topics such as loss of face and issues of principle.

We often hear mediation described as taking place in the shadow of the law. However, the author underscores his repeated advice not to demonise conflict, courts, judges and the rule of law by preferring the expression “in the light of the law”. That is a nice reframe!

In the chapter on process options, we are reminded that, in the words of a colleague, “Every mediation has a beginning, a middle, and an end, but not always in that order.” How true! As is the admonition that if mediators are working harder than the parties to break an impasse, they are working too hard. In that chapter, topics include the use of humour, food, silence, stories and metaphor. Mediators will recognise the difficulty faced by mediators when lawyers expect them to play the “agent of reality” role. And the sections on transparency and authenticity – who we are as people – remind us of our underlying values and that it is ok to be a little nervous and vulnerable at times as we “show up fully as our true selves” in a mediation. We can be, after all, “a positive model for the people whose disputes we are mediating.”

That the chapter on substantive interventions is the longest in the book underscores the richness of its content, with many techniques shared for use in a wide range of situations.  Hoffman describes his style as “eclectic” and recognises that, for some, the suggestions here may seem too directive or evaluative (I was interested in Hoffman’s definitions of facilitative mediation as “facilitated negotiation” and evaluative/directive mediation as “assisted negotiation”).  Wisely, he counsels that any potential intervention should be presented “with curiosity” as to its appropriateness for the parties and their conflict and might be framed as questions to assist the parties to find their own solutions. Most of the described interventions are money-related but there are non-monetary aspects discussed too and the concluding section and story on ‘A Lagniappe’ – something unexpected and gratuitous – is heart-warming.

In the penultimate chapter on techniques to avoid, the author refers to Judge Wayne Brazil’s reminder that a mediator’s “overarching mandate is not to secure a settlement but to proceed with a visible integrity that inspires the respect and confidence of all participants.” We are not stakeholders in settlement but enablers of the making of wise choices by parties. And of course, as Hoffman writes in his concluding chapter, “settlements are, paradoxically, more likely to occur the less attached I am to achieving them.”

Overall, this is an exceptional addition to the literature on mediation and a ‘must-buy’ for any mediator (and peacemaker) who wishes to expand their repertoire of skills and techniques.