SHARON
SUTHERLAND
For all the careful preparation,
research and skills training that
good negotiators bring to settlement discussions and mediations,
the course of any conflict resolution process is still largely
unscripted. An effective negotiator or mediator, therefore,
requires skills in awareness,
“building on offers,” and spontaneity.
While lawyers and mediators
often believe such skills to be
somehow innate — you either
have them or you don’t—the
world of improvisational theatre
offers a long history of training
and nurturing those skills through
games and exercises that can just
as effectively be adapted to
improve negotiator skills as to
prepare a competitor for The-atreSports.
Over the past several years,
applied improvisation training
has become increasingly popular
with organizations seeking to
increase creativity and stimulate
cooperation. While corporate
workshops often focus on
improved teamwork within the
organization, there are obvious
applications for increased trust-building skills and proactive listening for the more transactional
negotiations common in legal
conflict resolution.
Perhaps the most fundamental
connection between improvisers
and conflict resolution professionals is the “Yes, and” stance that is
common to the best improvisers
and the most successful negotiators and mediators. In improvisation, “Yes, and” refers to the exercise of listening in order to identify
offers in a co-performer’s words or
actions. In this context, everything that a performer says or
does is an offer. Similarly in negotiation, words, actions, emotions,
and even blocking behaviours all
provide an opportunity to develop
and explore new ideas and build
toward resolution if the listener
focuses on the underlying offer.
In legal negotiation, mediators
refer to “interests” rather than
offers. Lawyers struggle viscerally
with the idea of accepting offers or
even recognizing opportunities to
build on what is offered by our
counterparts on the other side of a
dispute; to the contrary, we are
generally trained from the beginning of law school to focus on listening to rebut or block the other
party’s suggestions or underlying
offers.
This is not unique to the law:
in all areas of life, people reject
ideas without fully exploring
them. The difference is that in law
school, we are trained to hone that
tendency to a fine point, and eviscerate ideas that come from our
counterparts rather than trying to
build on them to see if they could
work. That training can lead us to
block reflexively, rather than consciously, and we are often unaware
that we are missing opportunities
for mutual gain.
“But versus and” is a simple
improvisational game that challenges parties to build agreement
on any topic while linking to the
other party’s suggestions. This
linking must be made in the first
rounds of the game with the words
“yes, but,” and then, in a successive
“Improvisational games
train the players in
seeing different
perspectives, thus
building greater
flexibility in thought
and approach to
problems.
round, with the words “yes, and.”
The difference between the two
rounds is simple, but demonstrates the profound difference
between the two stances in a way
that helps negotiators to shift consciously into a practice that builds
on offers. The game can even be
used by mediators as an impasse-breaking tool in a real mediation
to help parties recognize patterns
that are blocking solution-ori-ented discussion. Practising such
games helps negotiators recognize
patterns of “listening to rebut,” in
others and in themselves, and
helps build tools to break those
patterns.
For mediators, the “Yes, and”
stance is fundamental to the
notion of neutrality. While it is
generally accepted that mediators
can never be truly neutral, they
nonetheless strive for a stance
that allows them to accept contradictory perspectives. By contrast,
lawyers are trained to find facts
by testing their truth. We find it
challenging to see factual ambiguity as an opportunity rather
than a problem.
Improvisational games train
the players in seeing different perspectives, thus building greater
flexibility in thought and approach
to problems. In the world of theatre, when the improvisers on
“Whose Line Is it Anyway?” play
the rapid-fire “Props” game, they
are called on to keep generating
new ideas about how one can see
and use a physical item; they succeed by allowing themselves to
generate ideas that might fail.
They do not succeed at the game if
their focus is on coming up with
the best solution. By accepting
many possible ideas, they trigger
even more and better ones.
In negotiation, the generation
of ideas in concert with another
party can seem very risky. But it
feels just as risky stepping into an
improvisational game for the first
ISTOCKPHOTO.COM
time: everyone wants to get it
right. Practising improvisation
with colleagues reduces the perceived risk by trust-building and
by creating space in which ideas
are not critiqued as they are generated, but examined for possibilities—exactly what we try to do
when brainstorming.
In negotiation and mediation,
most often solutions are reached
close to the end of the time allotted, whether that time is an hour
or a day. In improvisation, exercises train for spontaneity and idea
generation by explicitly reducing
the amount of time allowed for
preparation. As a result, everyone
knows they do not have time to
come up with the best idea, and so
will not be judged harshly for what
they do produce. For that reason,
games that train for spontaneity
make more explicit the ways in
which a negotiator or mediator
can create the right space for idea
generation—without waiting until
the last moment.
These thoughts are just a start
in exploring the tools we can draw
from improvisational theatre. A far
wider array of tools is available,
including status games and exercises that enhance our ability to
read and make use of non-verbal
communications; storytelling
exercises that enhance the ability
to build an effective narrative alone
or in combination with others; and
many techniques for reducing the
risks that impair spontaneity.
Improvisational training in law
schools, mediation and negotiation courses, and, in the right circumstances, even mediations
themselves offers an effective and
fun means of increasing negotiators’ skills and eliminating
impasses that arise due to our
natural “yes, but” impulses.
Sharon Sutherland is an
assistant professor at the Univer-
sity of British Columbia Faculty of
Law and founding editor of
“Masks: the online journal of law
and theatre.” She teaches both a
clinical mediation program and
Law and Theatre, and has pre-
sented many workshops on applied
improvisation skills for mediators,
negotiators and litigators.
Court denies union second ‘kick at the can’
Arbitrator’s decision to
give union a second
opportunity to present
evidence ‘was based
on speculation’
DONALEE MOULTON HALIFAX
The Supreme Court of Nova
Scotia has ruled that final and
binding arbitration decisions are
just that. There is no second “kick
at the can.”
In Halifax (Regional Munici-
pality) v. Canadian Union of
Public Employees, Local 108,
[2010] N.S.J. No. 343, Justice
Glen McDougall found that, “The
arbitrator’s decision to give the
union a second opportunity to
present medical evidence of a dis-
ability—a decision that was
included within what purported
to be a final decision — was based
on speculation and, even more
significantly, was beyond the arbi-
trator’s jurisdiction.
“The arbitrator’s duty,” he
stated, “was to provide a final and
binding decision.”
The need for finality is inher-
ent in the arbitration process,
said Randolph Kinghorne, a law-
yer with the Halifax Regional
Municipality Legal Services who
represented the city in the case.
“Based on the nature of the pro-
cess, an arbitrator cannot fac-
tually and legally decide the issues
put before him and then, being
uncomfortable with the result
because of speculation regarding
how a party presented its case,
provide opportunity for further
evidence.”
In Halifax, the Halifax
Regional Municipality (HRM)
asked the court to quash an arbi-
