Victoria Lindenauer, Esq.
The Dirty Word in Mediation: Impasse
(or Why Will Rogers May Have Been Wrong
about Digging Yourself Deeper into Holes)
Will Rogers was known to say, “If you find yourself in a hole, the first thing to do is stop digging.” Sage advice in the game of life, but as regards its application to the process of mediation, maybe not. My advice? Dig deeper! Get to the bottom of the conflict. Impasse is just a blip on the negotiation radar screen.
Perhaps you have been in a mediation where after a period of back-and-forth, the parties feel they are in the “hole,” still too far apart with nothing apparently new to discuss. One side or the other may suggest throwing in the towel. While the literature and experts on the topic have identified numerous theoretical bases and solutions for impasse, many mediation participants simply want to know what to DO, right now. Here are ten pragmatic techniques you may want to try:
1. Name it and Claim it: Articulate the real problem. Is it purely financial? Philosophical? Emotional? Encourage your client or the opposing party to bring perceived problems out into the open. The focus of the conversation may change.
2. Agree to Disagree: Keep your eye on the ball. Even in cases where the parties disagree about liability apportionment, reasonableness of medical treatment, or other "hot button" issues, they can agree on a settlement number. Avoid getting bogged down in attempts to persuade the opposition to agree with you. Agreement on those matters may be irrelevant to settlement.
3. Exaggerate it: Sometimes repeating back calmly to the speaker a point of view that may be extreme can be enough to encourage reasonableness.
4. Tell the Mediator What you Want: Need more information on opposing experts? The opposition's perceived reason for roadblocks? Reality therapy for your client? Maybe you want to give the opposition a preview of your fabulous trial preparation (accident reconstruction videos, for instance). Speak up. It's your mediation.
5. The Crystal Ball Exercise: I invite parties from both sides in highly emotional and/or questionable liability cases to consider how they will feel (or what effect it will have on their company) if a jury sends them home with an adverse verdict, and to consider whether any alternative on the table might be a more comfortable or financially favorable option. People can forget how life and work would be better if the case were behind them.
6. The Dr. Phil Approach: Be receptive to evaluating “How’s that working for you?” The inquiry can effectively interrupt an unproductive pattern by focusing the participant on the consequences of his or her own behavior.
7. Special Damages: If it isn't entirely clear to you, ask for the explanation underlying the opposition's special damages analysis. Discovering inadvertent miscalculations or missing information can change the game mid-stream.
8. Consider whether your client or any other party seems to prefer for the conflict continue; if so, why?
9. Stick around: I have seen it happen many times that no settlement at 3:30 turns into a great settlement at 4:00. Take a breather, have a bite to eat, take a short walk. Your patience can pay off.
10. Finally, try and be at least a little bit flexible. As Will Rogers also said:
I look forward to seeing you soon. I am a Court approved mediation panelist for the Superior Courts of Santa Barbara, Ventura, and San Luis Obispo, and Resolute Systems, LLC
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