Settlement conferences, mediations, and negotiations are often a great opportunity for a case. The parties can share their wishes and can create a solution to the problem that will not be available if a judge or jury decides the issue. When the parties are cooperating, negotiation may be incredibly productive and save the case from a trial. However, even the most productive settlement conferences may come to a screeching halt when the parties hit a sudden impasse—a situation where they cannot move forward because of a deadlocked disagreement.
Hitting an impasse often comes with a sense of dread that the negations are about to fall apart. It can feel like there is nothing more that can be done. Occasionally, an impasse will signal that the parties are incapable of settling the disagreement and the case will need to proceed through litigation. However, a deadlock is not always completely insurmountable, and there are several ways to encourage negotiations to continue.
Types of Impasse
An impasse may be directly related to the overall conflict, or it may be a result of the parties’ disagreement about a smaller part of the plan. One of the first things a mediator can do to encourage the parties to move forward is to identify what type of impasse the parties are experiencing. Common types of impasses are:
- Procedural: This type of impasse results when the parties do not believe the structure or the procedure of the negotiation is fair and they refuse to participate. This can best be solved by shifting the procedure or set up or explaining the process to ensure impartiality.
- Emotional: Emotional impasse often occurs because one party believes their emotional interests have not been honored. This will require the parties and mediator to address emotional interests with greater depth and understanding.
- Substantive: This is the most common impasse and is easily identified. The impasse results when the parties are not willing to compromise on their substantive interests, which include monetary and other interests outside of emotional interests. This will require reframing and addressing the substantive issues that are important to each party.
- Mixtures: It is often possible for an impasse to be caused by a mixture of these issues and likely other issues that the parties are facing.
Suggestions for Evaluating an Impasse
Once a mediator or negotiator has determined the nature of the impasse, they can identify solutions that may encourage the parties to move forward in negotiations. There are a variety of suggestions that can help the parties start to negotiate again. The neutral will need to adapt to each situation, and not all impasses can or should be overcome. However, when the mediator or negotiator feels that the negotiations could or should continue, the following solutions may serve as a guide to help the parties move forward.
- Encourage questions and active listening. Encourage the parties to ask clarifying questions and practice active listening. By refusing to frame their position as the other side is talking, the parties may hear things they would have missed had they been only listening for their positions and realize that there is more common ground.
- Find the essence of the problem. Occasionally, the parties will have issues articulating the essence of the problem for their position, or a party may be embarrassed by the root of their position. Finding out the actual cause of the conflict may help the opposing party understand the position and negotiate.
- Start broad and focus on specifics later. If the negotiations start by focusing on the specifics of an apology letter or the dollar amount for a specific issue, the disagreements may quickly take over the focus. If the parties can agree to general principles, such as X needs to write an apology letter or Y needs to pay X, they realize that they are capable of finding common ground, and it may make the details easier to achieve.
- Pick a different issue to focus on. If the parties are disagreeing about a specific issue, it may be beneficial to switch to an easier issue. Finding a way to agree on another issue may help the parties return to the impasse issue with a more collaborative spirit.
- Break down the issues. If one issue is causing a lot of issues for the negotiation, it may be helpful to break the larger issue into smaller issues if possible. This will allow the parties to agree to smaller pieces and hopefully move toward agreement on the whole.
- Empathize with the other party. Ask the parties what they would do in the other’s situation and frame questions to encourage the parties to consider the other’s position. This allows the parties to see the other position more clearly and identify what is important.
- Take a break. If the impasse is particularly heated, or if the parties are threatening to end negotiations, it can be helpful to have the parties step away from the table for a few minutes. Fresh air, food, and silence or small talk can help calm fears, and the parties may be able to approach the situation again with fresh eyes.
- Suggest a bracket. If the impasse is caused only by the amount of money one party will receive or pay, proposing a bracket may give the parties a realistic place to start. A bracket will set a high and a low amount that the agreement must be between.
- Split the difference. Suggesting that the parties split the difference between their positions in an impasse can help close the gap between the parties and move on to another issue or settlement. While the parties may not accept it, it can be helpful to see that the positions are not as far apart as they seem.
- Pair movement on both sides. Ask the opposing parties to link their offers, such as X will go to Y if A goes to B. This technique gives parties the confidence to move their position knowing that the other side must also move with them.
- Predict what will happen in court. If the style of mediation or negotiation allows, offer the parties a prediction of how the case will go if it proceeds to court and distinguish the remedies available to the parties in each option. This will show the parties that they can take control of the situation that will not be available in litigation.
- Change the setup. If the parties are in separate caucuses, suggest a joint session if possible. If they are in a joint session, suggest caucuses. The parties may be willing to shift their positions or share more information directly with the other party or if they can speak to a neutral in confidence.
- Exaggerate the positions. Having the parties exaggerate their positions to the other party, increasing their emotions and their claim. This technique can make the parties realize they are being absurd. At the very least, it can shift the mood and make the parties laugh together. Both outcomes can help negotiations resume.
- Talk about everything but money. If other issues need to be decided apart from a dollar amount, and the dollar amount is causing an impasse, suggest that the parties agree on the emotional or procedural issues. If a party receives a term they need in a separate issue, they may be more willing to compromise on the amount.
- Make the amount real. For lawyers whose clients are unwilling to settle for reasonable amounts, suggesting what the amount offer could be used for could help the client see the value in the offer as more than just a dollar amount. When the money becomes real, clients see the choice in a new light.
- Ask the clients to think about the future. This is similar to making the money real, but it asks the parties to envision what their lives will look like after the dispute is settled. This helps create rational places to begin negotiations to achieve that vision, and it can help identify any emotional or nonmonetary interests that parties may not be focusing on.
- Try it out. Parties are often more willing to agree if there is a space for the agreement to change if it needs to in a few months. Suggesting the parties impose a trial period on an arrangement makes it feel less permanent and allows flexibility in situations that make not always have such flexibility.
- Threaten to end the mediation. When the parties realize that they could lose all the progress already made if they do not agree or shift on this issue, they may be willing to continue.
These strategies will help encourage negotiation to resume, but it is important to remember that the goal is not to push the parties to a settlement that does not effectively solve the problem. It is more important to encourage the parties to see the issue in a new light and to negotiate constructively than it is to overcome an impasse. There may be many valid reasons that a party needs to steadfastly hold their position on a point, and settlement outside trial may not be possible. Understanding the needs of the parties will give the mediator and the parties the ability to make the best decision possible—whether that means continuing to negotiate or choosing to leave the negotiation table. Both options, if the best interests of the parties are honored, can bring resolution upon which everyone can agree.