Tools for Getting Parties Through Impasse


DECEMBER 7, 2016.  New York Law Journal.

In our last column, we discussed several strategies for addressing impasse in mediation: examining the conflict dynamic; using silence to allow parties time to consider the issues; exploring the parties’ motivation to mediate; shifting to a different topic, enabling time for further reflection; considering the smaller components of each issue; obtaining and analyzing more information; and having separate conversations with the parties. “Strategies Mediators Employ When Parties Are at Impasse,” NYLJ, Aug. 25, 2016. Today, we continue to lay out tools mediators routinely use when parties arrive at positions that seem intractable and incompatible.

1. Explore the Buy-In: Buy-in, or a commitment to participate fully in the mediation process and make every effort to resolve the conflict accordingly, is distinguished, albeit subtly, from motivation, and both are essential components to “success” in mediation. Whereas motivation is signaled by the reasons for coming to and remaining in mediation, buy-in has to do with working through each step of the process. Implicit in buy-in is a willingness to trust that the process will yield opportunities for settlement, even when the parties are entrenched and feel vulnerable.

The mediator may, at these moments of frustration, explore anew why these process steps are in place and how they might work for each party. There is an extent to which the mediator, without pressuring the parties toward resolution, plays a role in orienting (or re-orienting at impasse) them toward their mutual goal.

2. Go Back to Basics and Explore Interests and Goals Afresh: Initially, alongside information gathering, the mediator’s primary role is to explore interests and goals, helping parties to express their understanding of the situation, their sense of fairness and their hopes for outcome. Hearing the other side express these values is a key component of loosening up the conflict dynamic. As parties move further along in the process and come to evaluate options for settlement, these goals may be refined or clarified, or they may even shift.

3. The Law: In mediation, the law is always a vital reference point, since a judicial determination is, of course, an alternative to a negotiated agreement. That said, the outcome in court is far from predictable in many cases and is likely more of a range than a precise, knowable result. Thus, the law can serve to narrow the scope of negotiation or create an anchor, from which to deviate and trade based on each party’s priorities. To illustrate, if the mediator and/or the attorneys have informed the parties that a legal result is generally between 50-100, then a demand for 200 would necessitate compensation for the upward deviation in another component of the deal.

Such trading—which can only take place with full understanding of the law—allows parties and lawyers to design creative settlements that best meet everyone’s needs. Infinite possibilities can be paralyzing. So, when parties are truly facing an impasse, the law, paradoxically, restricts the range of options and also expands the space for realistic discussions.

4. Incorporate Lawyers and Other Experts: As parties often have long and complex histories and very particular ideas about what is a fair result, lawyers and other experts—such as financial experts, forensic accountants, medical professionals—may weigh in as to what is realistic and reasonable, as well as what are industry standards. They analyze with their clients what is needed to reach goals post-settlement—in other words, reality testing.

As mediators, we insist that parties engage one neutral expert for unsettled issues, thereby creating a joint effort to obtain impartial information that will lead to mutually agreeable outcomes. This is in stark contrast to a “battle of the experts,” both costly and unwittingly driving parties toward more “split down the middle” results.

5. Step Into the Other’s Shoes: We do NOT often ask parties to try to see the conflict from the other’s perspective. And, when we do, it is only after we are thoroughly sure that each party has fully expressed, and had understood by mediators, his or her perspective. How an individual views the situation must be fully transparent, from his or her sense of a fair result to how responsibility is allocated, among other concerns. More often, we as mediators see parties struggling to hold fast to their own understanding of the conflict and reticent to see it fully from the other’s perspective. Indeed, we on occasion notice that parties may have listened so often, for so long, around the same issues, that it is simply a massive leap to understand the other with fresh ears.

When this happens, we as mediators may role play expressing a party’s perspective. “I’ll, with both of your permission, be Mary.” Upon agreement, the mediator will relate to John precisely what matters most to Mary and why, in the emotional and factual voice of Mary’s understanding of the conflict. Thereafter, the mediator must ensure that “Mary” endorses the mediator’s performance and only then that “John” understands Mary as fully as he can. This role play exercise may serve as a crucial component of mediation. That is, one must understand his or her own view of the conflict—not necessarily a given—before one can be called upon to step into the other’s shoes and make an offer sufficiently satisfying to both.

6. Brainstorm Without Judgment or Restraint: As we enter this phase of the mediation process, we encourage parties to, without judgment, suggest resolutions in as unhampered a manner as possible. Indeed, we even encourage the parties to suggest options that they knowingly would reject. While counterintuitive perhaps, it is our consistent experience that loosening up the communication at this phase of the process has many benefits. Sometimes, good ideas do derive from bad ones. More important, looking at aspects of an idea one does not want sharpens one’s thinking. What is wrong with that idea? What if it shifted in some manner? How can I articulate what does not work, and might that help refine understanding the grains of what would work?

Finally, from a mediator’s perspective, there is a restraint on neutrality to “editing” what ideas are presented—accepting some and not others may be an expression of mediator bias. The mediator, at this phase, simply encourages generating ideas—distinct from reacting, evaluating and refining. Rather, we want to encourage the parties (and ourselves, internally) not to own any particular outcome. In this instance, we distinguish between generating and evaluating ideas. In the generating ideas/brainstorming phase of the process, there is an intellectual opening up between parties as they seek to uncover potential settlement options. Brainstorming generally in mediation is freewheeling and without limitation.

In the very act of fully participatory brainstorming, parties do come to see other perspectives—regardless of whether they agree. As with other “micro agreements,” if parties are able to brainstorm and evaluate options around a less pivotal issue, it may well lay the groundwork for the same process when it comes to the focal decisions. There is a fine balance between logical reasoning and a “letting go” of the tensions of the negotiation and entrenched positions to allow more lateral, associative thinking to dominate (as distinguished from vertical, logical, step-by-step problem solving where there are “right” and “wrong” answers). Lateral associative thinking allows instinct, emotion, creativity and a wandering mind. All may contribute to creativity solutions at this phase.

7. Explore Process Options: Similar to examining the law or relying upon lawyers’ advice, considering not working in mediation can also reaffirm commitment to staying out of court. Parties are often determined to save time, energy and expense and may have other underlying motivations to mediate. Presumably, most parties to mediation are determined to work toward a lasting result, avoiding protracted litigation. Even where there is a court ruling, in most cases, there is then the appeals process. Clients need to know that finality may be elusive for quite some time.

At an impasse, when a party throws up his arms and suggests leaving the process, we plainly discuss the pros and cons of such a shift. It may be the better alternative for one or both. To that end, the mediator’s responsibility is to explore process options in a neutral and realistic manner and resist the urge to be invested in the parties reaching agreement in mediation. The “right” process is always the one that works best given the reality both sides face.

Throughout, there are intangibles that defy explicit instructions. Namely, the mediator is a neutral cheerleader. The goal is to normalize the experience, meet the parties where they are, not be invested in a particular outcome, or any resolution at all for that matter. On top of which, there is a non-judgmental caring and effort to understand and help the parties. This evolves and deepens as the mediator brings problem solving skills and develops trust with the parties, creating a shared interest of moving beyond impasse and coming to agreement.

1. Explore the Buy-In: Buy-in, or a commitment to participate fully in the mediation process and make every effort to resolve the conflict accordingly, is distinguished, albeit subtly, from motivation, and both are essential components to “success” in mediation. Whereas motivation is signaled by the reasons for coming to and remaining in mediation, buy-in has to do with working through each step of the process. Implicit in buy-in is a willingness to trust that the process will yield opportunities for settlement, even when the parties are entrenched and feel vulnerable.

The mediator may, at these moments of frustration, explore anew why these process steps are in place and how they might work for each party. There is an extent to which the mediator, without pressuring the parties toward resolution, plays a role in orienting (or re-orienting at impasse) them toward their mutual goal.

2. Go Back to Basics and Explore Interests and Goals Afresh: Initially, alongside information gathering, the mediator’s primary role is to explore interests and goals, helping parties to express their understanding of the situation, their sense of fairness and their hopes for outcome. Hearing the other side express these values is a key component of loosening up the conflict dynamic. As parties move further along in the process and come to evaluate options for settlement, these goals may be refined or clarified, or they may even shift.

3. The Law: In mediation, the law is always a vital reference point, since a judicial determination is, of course, an alternative to a negotiated agreement. That said, the outcome in court is far from predictable in many cases and is likely more of a range than a precise, knowable result. Thus, the law can serve to narrow the scope of negotiation or create an anchor, from which to deviate and trade based on each party’s priorities. To illustrate, if the mediator and/or the attorneys have informed the parties that a legal result is generally between 50-100, then a demand for 200 would necessitate compensation for the upward deviation in another component of the deal.

Such trading—which can only take place with full understanding of the law—allows parties and lawyers to design creative settlements that best meet everyone’s needs. Infinite possibilities can be paralyzing. So, when parties are truly facing an impasse, the law, paradoxically, restricts the range of options and also expands the space for realistic discussions.

4. Incorporate Lawyers and Other Experts: As parties often have long and complex histories and very particular ideas about what is a fair result, lawyers and other experts—such as financial experts, forensic accountants, medical professionals—may weigh in as to what is realistic and reasonable, as well as what are industry standards. They analyze with their clients what is needed to reach goals post-settlement—in other words, reality testing.

As mediators, we insist that parties engage one neutral expert for unsettled issues, thereby creating a joint effort to obtain impartial information that will lead to mutually agreeable outcomes. This is in stark contrast to a “battle of the experts,” both costly and unwittingly driving parties toward more “split down the middle” results.

5. Step Into the Other’s Shoes: We do NOT often ask parties to try to see the conflict from the other’s perspective. And, when we do, it is only after we are thoroughly sure that each party has fully expressed, and had understood by mediators, his or her perspective. How an individual views the situation must be fully transparent, from his or her sense of a fair result to how responsibility is allocated, among other concerns. More often, we as mediators see parties struggling to hold fast to their own understanding of the conflict and reticent to see it fully from the other’s perspective. Indeed, we on occasion notice that parties may have listened so often, for so long, around the same issues, that it is simply a massive leap to understand the other with fresh ears.

When this happens, we as mediators may role play expressing a party’s perspective. “I’ll, with both of your permission, be Mary.” Upon agreement, the mediator will relate to John precisely what matters most to Mary and why, in the emotional and factual voice of Mary’s understanding of the conflict. Thereafter, the mediator must ensure that “Mary” endorses the mediator’s performance and only then that “John” understands Mary as fully as he can. This role play exercise may serve as a crucial component of mediation. That is, one must understand his or her own view of the conflict—not necessarily a given—before one can be called upon to step into the other’s shoes and make an offer sufficiently satisfying to both.

6. Brainstorm Without Judgment or Restraint: As we enter this phase of the mediation process, we encourage parties to, without judgment, suggest resolutions in as unhampered a manner as possible. Indeed, we even encourage the parties to suggest options that they knowingly would reject. While counterintuitive perhaps, it is our consistent experience that loosening up the communication at this phase of the process has many benefits. Sometimes, good ideas do derive from bad ones. More important, looking at aspects of an idea one does not want sharpens one’s thinking. What is wrong with that idea? What if it shifted in some manner? How can I articulate what does not work, and might that help refine understanding the grains of what would work?

Finally, from a mediator’s perspective, there is a restraint on neutrality to “editing” what ideas are presented—accepting some and not others may be an expression of mediator bias. The mediator, at this phase, simply encourages generating ideas—distinct from reacting, evaluating and refining. Rather, we want to encourage the parties (and ourselves, internally) not to own any particular outcome. In this instance, we distinguish between generating and evaluating ideas. In the generating ideas/brainstorming phase of the process, there is an intellectual opening up between parties as they seek to uncover potential settlement options. Brainstorming generally in mediation is freewheeling and without limitation.

In the very act of fully participatory brainstorming, parties do come to see other perspectives—regardless of whether they agree. As with other “micro agreements,” if parties are able to brainstorm and evaluate options around a less pivotal issue, it may well lay the groundwork for the same process when it comes to the focal decisions. There is a fine balance between logical reasoning and a “letting go” of the tensions of the negotiation and entrenched positions to allow more lateral, associative thinking to dominate (as distinguished from vertical, logical, step-by-step problem solving where there are “right” and “wrong” answers). Lateral associative thinking allows instinct, emotion, creativity and a wandering mind. All may contribute to creativity solutions at this phase.

7. Explore Process Options: Similar to examining the law or relying upon lawyers’ advice, considering not working in mediation can also reaffirm commitment to staying out of court. Parties are often determined to save time, energy and expense and may have other underlying motivations to mediate. Presumably, most parties to mediation are determined to work toward a lasting result, avoiding protracted litigation. Even where there is a court ruling, in most cases, there is then the appeals process. Clients need to know that finality may be elusive for quite some time.

At an impasse, when a party throws up his arms and suggests leaving the process, we plainly discuss the pros and cons of such a shift. It may be the better alternative for one or both. To that end, the mediator’s responsibility is to explore process options in a neutral and realistic manner and resist the urge to be invested in the parties reaching agreement in mediation. The “right” process is always the one that works best given the reality both sides face.

Throughout, there are intangibles that defy explicit instructions. Namely, the mediator is a neutral cheerleader. The goal is to normalize the experience, meet the parties where they are, not be invested in a particular outcome, or any resolution at all for that matter. On top of which, there is a non-judgmental caring and effort to understand and help the parties. This evolves and deepens as the mediator brings problem solving skills and develops trust with the parties, creating a shared interest of moving beyond impasse and coming to agreement.

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