How To Overcome Impasse

As negotiations proceed, Parties sometimes

reach an impasse — often not due to overt conflict, but rather due to

resistance to workable solutions or simply exhaustion of creativity. While

the impasse might signal that the dispute is unresolvable in mediation,

the mediator may believe that a workable agreement is still possible. Below

are some techniques to get negotiations moving.

Always remember: The goal isn’t to overcome impasse

per se, but to help the Parties analyze and negotiate constructively. The

Parties are free to stick with a position — there may be a legitimate

reason for impasse, and it’s not your job to pressure the Parties into

a settlement!

1. Take a break. Often, things have a way of looking different

when you return.

2. Ask the Parties if they agree to set the issue aside

temporarily and go on to something else – preferably an easier issue.

3. Ask the Parties to explain their perspectives on why

they appear to be at an impasse. Sometimes, the Parties need to feel and

focus consciously on their deadlock.

4. Ask the Parties, “what would you like to do next?”

and pause expectantly. Or, say “frankly, it looks like we’re really stuck

on this issue. What do you think we should do?” These questions help the

Parties actively share the burden of the impasse.

5. Ask each Party to describe his/her fears (but don’t

appear condescending and don’t make them defensive).

6. Try a global summary of both Parties’ sides and what

they’ve said so far, “telescoping” the case so that the Parties can see

the part they’re stuck on in overall context. Sometimes, the impasse issue

will then seem less important.

7. Restate all the areas they have agreed to so far, praise

them for their work and accomplishments, and validate that they’ve come

a long way. Then, ask something like: “do you want to let all that get

away from you?”

8. Ask the Parties to focus on the ideal future; for example,

ask each: “where would you like to be [concerning the matter in impasse]

a year from now?” Follow the answers with questions about how they might

get there.

9. Suggest a trial period or plan; e.g., “sometimes, folks

will agree to try an approach for six months and then meet again to discuss

how it’s working.”

10. Help the Parties define what they need by developing

criteria for an acceptable outcome. Say: “before we focus on the outcome

itself, would you like to try to define the qualities that any good outcome

should have? ”

11. Be a catalyst. Offer a “what if” that is only marginally

realistic or even a little wild, just to see if the Parties’ reactions

gets them unstuck.

12. Offer a model. Say: “sometimes, we see Parties to

this kind of dispute agree to something like the following . . . .”

13. Try role-reversal. Say: “if you were [the other Party],

why do you think your proposal wouldn’t be workable?” or “if you were [the

other Party], why would you accept your proposal?”

14. Another role-reversal technique is to ask each Party

to briefly assume the other’s role and then react to the impasse issue.

You also can ask each Party to be a “devil’s advocate” and argue against

their own position.

15. Ask the Parties if they would like to try an exercise

to ensure they understand each other’s position before mediation ends.

Ask Party A to state his/her position and why, ask Party B to repeat what

B heard, and then ask A if B’s repetition is accurate. Repeat for B. Listen

and look for opportunities to clarify.

16. Ask: “what would you be willing to offer if [the other

Party] agreed to accept your proposal?”

17. Use reality-checking. For example, “what do you think

will happen if this goes to court?” Draw out the emotional, financial,

and other costs of litigation and delay.

18. If all else fails, suggest (or threaten) ending the

mediation. Parties who have invested in the mediation often won’t want

it to fail, and may suddenly come unstuck. This approach is useful where

one Party may be hanging on because he/she enjoys the attention the process

provides, or enjoys the other Party’s discomfort.

                        author

James Melamed, J.D.

Jim Melamed co-founded Mediate.com in 1996 along with John Helie and served as CEO of Mediate.com through June 2020 (25 years).  Jim is currently Board Chair and General Counsel for Resourceful Internet Solutions, Inc. (RIS), home to Mediate.com, Arbitrate.com, ODR.com and other leading dispute resolution sites. During Jim's tenure, Mediate.com… MORE >

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