Comments: Impasse Is A Fallacy

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John Settle , Arlington VA   09/07/08
I recommend & generally agree with Mr. Berman's article, from a slightly different perspective (I teach a mini-course on "impasse," and have an article with 79 "techniques" for overcoming it published by the ABA etc.) I believe strongly that before you can engage any "techniques" (including even some of those suggested by Berman, notwithstanding his premise) you first must be well-grounded in and continuously practicing the basics of good mediation -- if you have the fundamentals down, then impasse, while it may not be a "fallacy," will be less likely and more easily overcome when encountered.

Roy Baroff, Pittsboro NC     09/04/08
Whose settlement is it?
Lee Jay - This is an excellent article and points to the notion that when the discussions become difficult and appear to be "stuck" you need to do something different as the mediator. It's the time to take risks, to be creative and help participants find opportunity where none had previously appeared. I do take issue with one characterization, i.e., your comment about settling a certain % of cases last year. I suggest that we as mediators do not settle cases - the participants settle the case. For me I consider a successful mediation one in which the participants have had a meaningful conversation and at its conclusion, made informed choices about how they wanted to proceed. As for what to call it, in North Carolina we have "mediated settlement conferences" in our Superior Court system. Thanks again for your insights.

Bruce , Dayton OH   08/22/08
I've recieved several well-intentioned responses to my post on this subject, and I thank you all. Again, I agree with the suggestions in the article wholeheartedly - presupposing certain conditions, one of which is that the mediation is voluntary on both sides and that I get to do the convening and have the time necessary to solve some problems in advance. In those cases, my settlement rate is well above 90%. However, my original post referred to court-ordered mediations over which I have no control whatsoever prior to the initial session in most cases and precious little in the remainder. And no, I normally can't go to the Judge and say, "Plaintiff needs to ask for a continuance and depose Dr. X (at a cost of thousands) in my humble opinion before this mediation has a chance of being fruitful." I would be laughed at in the best case scenario. I could recall fact situations for literally hours on end where the most skilled, conscientious and well-prepared mediator would wind up with less than a full settlement. I can live with that reality. I could also live with re-labeling the session as something other than mediation; perhaps something like, "mandatory facilitated conciliation effort." Lastly, there are a small number of cases that I truly believe should be tried in open court (although I mediate them regularly), e.g., discrimination cases, sexual harassment cases, etc. I abandoned my "Savior behavior" some time back, but still.

Rachel Green, Brooklyn NY     08/22/08
Great article demonstrating the power & options of the mediator and the process. It is true that for a particular day there might be impasse - then there is impasse in that the case could not be settled on that day. But when there is opportunity to meet again - magical things can happen. I have had countless cases where I could feel the despair of the conflict wash over me, where I, too, felt it was hopeless. I always try to communicate hope - because it is my experience that people who are determined to settle in mediation - who commit to come back again and again, until it is settled - have 100% settlement rate in mediation.

Lee Jay Berman, Los Angeles CA     08/21/08
Court-Ordered Mediations
While I completely understand your position, it still seems to me that you have several options. Can you talk to the PJ about the way the referral is taking place and raise their level of understanding about how that can doom the process? When the parties hit what you call a real impasse, can you not ask what specific discovery they need in order to make a more informed settlement decision? Can you narrow the scope of discovery required to prepare them for settlement (as opposed to being completely ready for trial)? Can you ask the defense what they would need in their file to justify a significanly different evaluation (couched as, "if I had THIS in my file, I could justify another $X,000")? Can you ask the Plaintiff what would change their mind about the value (couched as, "if I deposed THIS witness, and they didn't corroborate my client's statements, then I'd readjust my evaluation by $#X,000")? Can you conclude by having them tell you how long it would take to complete these couple of key things, and when they would be ready to reconvene for a real settlement discussion? I think you have more power in this situation than you are granting yourself. I would even submit for your consideration that the parties and their counsel might WANT you to ask these questions and attempt to keep them on a mediation track, rather than sending them back to litigation and moving on to another case. Just some thoughts... Lee Jay

Bruce , Dayton OH   08/20/08
Excellent points in cases where I do the convening and the mediation is in fact voluntary. However, I do a substantial number of mediations that are simply assigned to me by the presiding judge; he or she does not confer with counsel to any extent but rather orders them to meet with me at an appointed place and time, for two and a half hours. Period. Trust me, in some of those cases there is a genuine impasse (or perhaps it would be more helpful to label them as something other than mediations).