It’s self-evident that most parties who participate in mediation do so because they have reached an impasse: They're stuck. They have a dispute that they can’t resolve on their own. They need help. Mediation provides an avenue for addressing and resolving such impasses, but it is sometimes a challenge when the impasse carries over into mediation and prevents a resolution. Fortunately, skilled mediators have a variety of approaches to break an impasse and help the parties find common ground that allows them to reach agreement.
Photo: Martin SoulStealer, CC BY 2.0 , via Wikimedia Commons
“The mediator serves as both the vehicle and the opportunity for breaking impasse,” according to Rodney A. Max, a respected Florida mediator and attorney[1]. “The sooner the mediator is brought into the process, the better and more able the mediator is to assist the parties in getting to ‘yes.’”
An impasse usually takes the form of one or more of the parties being unwilling to move forward to resolve an issue or agree to something that the other party (and sometimes the mediator) believes is a reasonable proposal that, if accepted, would resolve the dispute. Often, it is unclear what is causing the impasse. Is it greed? Hurt feelings? A need for retribution? Distrust of the other party or the mediation process? An impasse can arise from an emotional response, the parties’ personal history, or both, or any number of other reasons.
If the parties seem to be stuck, the mediator may engage the parties in targeted questioning to find out what’s causing the impasse. This “targeted questioning” can sometimes feel like cross-examination as the mediator probes to find out why one or the other party’s position seems to be intractable. This can be a difficult but necessary process that takes a certain amount of finesse, because such questioning can sometimes offend or alienate a sensitive party and make them less willing to budge from their position. But such questioning may be appropriate and even necessary to help the parties’ work through the impasse, rebuild trust, redefine goals, or find a new path for negotiation to proceed and, with hope, succeed.
A mediator might try to help the parties reframe or rephrase the dispute. By thoughtfully placing the issue into a different light, the mediator may help the parties see the dispute from a different perspective and be able to come to an agreement. Taking a step back to review options, examine alternatives, look at things through a different lens, and brainstorm creative solutions are strategies the mediator can use to shift the parties’ focus and break an impasse.
The mediator can also make use of a technique known as “reality testing.” Here, the mediator will challenge a party’s position to find out where the impasse is coming from, especially if the position seems to be not in the party’s best interest. It involves asking difficult questions designed to help the party understand that their current position is not workable or at least not better than the most-likely outcome if mediation fails, and force them to consider whether a potentially worse outcome is really acceptable.
If the parties are stuck on a particular issue, especially money, the mediator might encourage them to consider tabling that issue and focus on other issues first. While working through other issues, the parties might be able to find common ground and build trust that will allow them to revisit and resolve the more-difficult issue later in the process.
Sometimes parties get stuck on dollar amounts and are unwilling to compromise. When the issue is money, parties usually start far apart and work closer to a compromise amount during the course of negotiations. But sometimes, one or both parties are unwilling to budge from their numbers. They get stuck on the idea that “the other party should be more reasonable” or “if they won’t move, neither will I,” focusing on what the other party is doing while ignoring their own goals or needs. In such cases, the mediator might suggest making conditional offers, asking each party, “if the other party moves this much, will you move that much?” This can sometimes stimulate a renewed round of negotiations that lead closer to a compromise amount that the parties can eventually accept.
Often, emotions cause an impasse in negotiation. In cases where the parties are unable to move forward due to anger or another emotional response, the mediator can suggest they take a time out to de-escalate the situation, in the hope that if the parties take a moment to cool off and regain their composure, they may be better able to move forward in a more-productive way.
If it’s late in the day and an impasse remains unresolved, the mediator can suggest continuing the mediation to another day. Sometimes an overnight break (or longer) can help the parties focus on what their needs and interests really are and return with a better sense of what they are willing to do to resolve the dispute. In the interim, the parties or their attorneys may talk and work through the impasse, or the parties may do "homework" to keep them focused on the issues and possible resolutions, allowing the mediation to eventually succeed.
If all else fails and the mediation seems destined to end without resolution of the impasse, the mediator may suggest that the parties consider a “mediator’s proposal.” It’s just what it sounds like: a proposal by the mediator suggesting a way that the parties may be able to resolve their dispute. During the mediation, after having talked at length with each party and their counsel and tried to help them reach an agreement, may have ideas about how they can resolve their dispute. In that case, the mediator can offer to provide a proposal if the parties agree to consider one. A mediator’s proposal is not a decision; it is a proposal that the parties are free to accept or reject. If the parties are willing to consider a mediator’s proposal, they may be willing to accept it; or, if not, it may still generate further negotiations between the parties that ultimately lead to a resolution.
There is not a one-size-fits-all approach to breaking an impasse in mediation; rather, it is an art of tailoring the process to the particular situation with appropriate sensitivity to the parties’ positions and needs. A skilled mediator will be able to use a variety of strategies to break an impasse and help the parties resolve their dispute.
To schedule a mediation in Washington or Hawai'i, contact Jeff Smoot at jeffsmootlaw@gmail.com or (206) 420-2466.
Copyright © 2023 by Jeffrey L. Smoot
[1] Breaking the Impasse: The Unique Mediation Opportunity, https://www.uww-adr.com/zupload/zgraph-content/uploads/pdfs/BREAKING_THE_IMPASSE_Article.pdf accessed January 24, 2023.
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