The word impasse has a particular meaning when it applies to alternative dispute resolution. The Collins English Dictionary defines the impasse noun by describing a situation, particularly, “If people are in a difficult position in which it is impossible to make any progress, you can refer to the situation as an impasse.” While the meaning of the impasse noun within alternative dispute resolution has a similar meaning, it has some key differences that this article will highlight and discuss. Specifically, alternative dispute resolution narrows the situations and definition further to situations where parties are bargaining with one another and cannot move further. An impasse can often feel like it is the end of a negotiation or mediation, but with the right tools, an impasse can be overcome or even avoided from the beginning. This article will discuss what impasse means in alternative dispute resolution, discuss some types of impasse, and end with tools to both avoid impasse from the start and overcome impasse when it inevitably happens.
An impasse is a moment in a bargaining situation where the parties seem unable to reach an agreement or give anything new to each other. A synonym that many people may use is a deadlock. When an impasse hits, the parties begin to feel that there is nothing more to do and may begin to figure out how to exit the situation without an agreement. An impasse may affect the entire agreement, meaning that the parties will leave the table with nothing settled. It can also only be a partial impasse, meaning that the parties have reached an agreement on some terms but cannot find an agreement on one or more of the terms. Depending on the type of negotiations, a partial impasse may not be an issue with the other terms, but in some contracts and other deals, a partial impasse may cause the whole deal to fall apart. Understanding an impasse is key to both avoiding and overcoming an impasse.
Types of Impasse:
To better understand an impasse and how to avoid them, it is important to understand the types of impasse because they demonstrate what gives rise to the impasse. Many parties end up at an avoidable impasse because one party ends up unintentionally irritating or demeaning the other party or insulting the moves the party is offering to try and reach a place where the parties can find a way to resolve the impasse. The types of impasses are determined by the way that the parties hit the impasse. They include the following types:
- Procedural Impasse: A procedural impasse occurs when both parties feel that the negotiation is being conducted in a way that makes the bargaining process unfair between the parties. This can be situations where there is a power imbalance between the parties or a mistrust of the neutral if the parties are using a third party to help resolve the dispute. This can also happen if one or both parties came to a negotiation or mediation with skepticism surrounding the process.
- Emotional Impasse: An emotional impasse occurs when one of the parties hits an emotional roadblock in the negotiation and cannot overcome it. This is often caused by a misunderstanding or a perceived slight that offends one of the parties. Another common cause of an emotional impasse is false pride in their position, making it impossible to ask them to give anything more. An emotional impasse is most common in situations where emotions are involved in the negotiation process, such as divorce, or instances where a party has an emotional attachment to something that they are bargaining over.
- Substantive Impasse: Substantive impasse is the most common type of impasse in an alternative dispute resolution situation. A substantive impasse is an impasse that results from the substance of the agreement. When the negotiations involve money, this will often be a situation where the parties are stuck at their low or high number and cannot move any further. This can be exacerbated when one of the parties has a lack of understanding in the negations or interference by other people that encourage the parties to refuse the agreement. When dealing with a substantive impasse, the parties are disagreeing with each other over the substance in such a way that they will not be able to find a middle ground without some dramatic interference.
The types of impasse help identify where an impasse originated and how they may be avoided or overcome.
One of the best things that a party can do when they are preparing for negotiation or mediation is to identify points where an impasse may arise and have the plan to attempt to avoid an impasse when they come up. When speaking about avoiding an impasse, this is the preparation that helps stop impasses from popping up, contrasting overcoming an impasse, which refers to moving past an impasse when it occurs. Avoiding an impasse means that the parties are aware of where the impasse may arise and have plans to stay away from the specific situations. Several kinds of preparation can help provide an opportunity to avoid an impasse, including:
- Understand Interests: Interests are the things that both parties want out of the bargaining session in combination with the influencing factors that drive the things that the parties want. Knowing your own interests can help you find ways to add value to an offer without harming your interests. It can also be helpful to know the other party’s interests because it helps to show where the most value is contained and will help demonstrate you are willing to give what they need in some cases. Knowing interest can help avoid an impasse because it helps the parties avoid topics and issues that the parties will need to avoid or save for later when necessary.
- Identify Value: One of the best ways to avoid an impasse is to identify the value that can be used to bargain in the negotiation and how and when to use this value. Value is something that one party can give to the other party to add to their overall outcome, even if it is not monetary value. This is where a party can come prepared with ways to add value creatively to the negotiation. For example, if the parties would likely hit an impasse at a certain point because one of the parties feels slighted by the other, the party that may have offended that party can add value by offering to apologize and may avoid the impasse.
- Helpful Neutral: Another way that the parties may be able to avoid an impasse is to choose a helpful neutral to oversee and guide the parties toward a resolution. A helpful neutral will be able to sense an impasse coming and may help the parties move away from the topic and into something helpful. They can also implement the strategies discussed below as a neutral, which is often better received.
Preparation is key to avoiding an impasse; however, no matter how hard the parties try to avoid it, an impasse may arise and will need to be overcome.
Even when the parties are prepared, there is still a chance that an impasse will arise for a myriad of reasons. When one does, it is important to remain calm and not let the frustration of the impasse cloud the judgment of the parties. When an impasse does arise, there are some options that the parties may use to overcome the issue and move forward with their negotiations. These strategies include:
- Identify the Source: One of the first things that the parties should do when an impasse arises is to identify the source of the impasse. Understanding why the parties are having difficulty moving forward can help the parties find the value that they can add that may help them move toward an agreement.
- Question the Reasoning: Often impasses are caused by one party’s inflated sense of their position. When the parties or a neutral can ask questions that help them reexamine their positions and the reasons that they are holding so strongly to their position, it can help the party see that their position is not as strong as they originally thought and can help the parties move forward. This can be as simple as asking what the parties would think may happen if the dispute goes to court.
- Take a Break: Impasses are often caused by emotions and the way that each party feels they are being treated. Sometimes, it can help if the parties take a short break. Removing themselves from the charged situation can help add perspective and give them a fresh start when they reconvene.
- Reverse Positions: Another tactic that can work well to help the parties find some common ground is to encourage a role reversal. By considering where the opposite party might be coming from, the party that is unwilling to move may be willing to reconsider its position to help move things toward an agreement.
- Threaten to End: One tactic that can work if the party that needs the other party to move is confident that the impasse party needs the agreement to happen is to threaten to walk away without an agreement. Doing so can push a party to make moves to keep the agreement lane open and move closer to the other party.
An impasse is a likely result when parties are working on reaching an agreement or resolving a dispute. Parties will have differing ideas of what is acceptable, and occasionally those ideas will clash to the point where the parties feel like they cannot move forward. However, when the parties are willing to take a step back and reevaluate the situation and their position, they will be able to move forward confidently and move toward an agreement. While an impasse may make an agreement feel impossible, preparing and understanding the positions that the parties are taking can help the parties put aside their differences and move forward together.
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