How To Overcome Impasse at Mediation:
As negotiations proceed, parties sometimes "hit a wall" and negotiations stop -- often not due to overt conflict, but rather due to resistance to
workable solutions or simply exhaustion of creativity.
While the impasse (stopping the mediation) 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 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. Suggest everyone get a snack - sometimes low blood sugar makes people "grumpy".
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). Really listen to what the party is saying.
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.
19. Offer to do a "partial settlement".
20. Offer to do a second session. Sometimes if people "sleep on it" resolution can easily be reached at the second session.