As I noted in Part Two on this topic, when parties are unable to avoid impasse, there are a number of ways you can change the dynamics of negotiations — including:
Offering An Assessment
I remind the parties of their BATNA (Best Alternative to a Negotiated Agreement) and WATNA (Worst Alternative to a Negotiated Agreement), and emphasize the costs and risks in failing to settle. At this stage, I’m often asked to advise the parties on what offer to make next. I’ll use this as another opportunity to do reality testing with the parties.
Pushing For Linked Moves
Use “what ifs.” IE: “What if I could get the other side to move to X, would you move to Y? If not, how far would you move?” You can often make progress by feeling out a party’s position without even having an offer to present. If you can urge the parties to move jointly, it allows them all to save face. Consider proposing a range from which the parties will negotiate. Even if it’s rejected, it can lead to the discovery of other moves.
Making conditional offers, or “bracketing,” is an excellent way to move along stalled negotiations. In this scenario, parties agree to narrow the scope of their disagreement by making moves conditioned on the others’ moves. For instance, if the defendant is at $500,000 and the plaintiff at $5,000,000, the defendant might be willing to move to $750,000 if the plaintiff will move to $2,500,000. It’s not uncommon for the parties to reject each other’s conditional offers, but even when that happens, I find the mere exchange of conditional offers can encourage parties to resume negotiation.
A mediator can suggest a set of terms to which the parties must respond under certain ground rules — namely, that each party must tell the mediator privately whether they’ll agree to the proposal. The terms must be accepted or rejected as is, and each party answers without knowing the other’s answer. Both parties know they can achieve complete resolution by answering “yes” to the mediator’s proposal, and a short time limit is set for acceptance or rejection.
When parties reject the proposal, they never learn whether their opponent would have accepted it. I tell the parties that the proposal isn’t necessarily a reflection of what is fair or warranted, but rather a reflection of what I believe the case can be settled-for after spending time with everyone involved. I usually tell the parties when neither side indicates a willingness to accept the proposal.
A judge is always available as a tool (or more accurately, a blunt object) to re-energize negotiations. Sometimes the mere suggestion of getting the court involved can motivate parties. If the court gets involved, it probably won’t help you the day of the mediation impasse, but it may provide assistance for subsequent conversations and/or meetings.
Challenging The Parties, Adjourning And Contacting Later
Some cases will not settle the day of the mediation. Sometimes parties need time to accept the reality of their case. While adjournment poses the risk that the parties never returning to discuss settlement, the risk is minimal. Prior to adjournment, I try to arrange for status calls — and possibly schedule a future meeting. It’s not uncommon for further negotiation to occur through a mediator by telephone or email.
Oftentimes, apparent impasse is only that: Apparent. The parties may be sincere in their refusal to negotiate, but unless they’re pushed, you’ll never know if an impasse can be overcome. Good mediators don’t easily take No for an answer.
When I encounter what appears to be a brick wall, I push on the bricks in hopes of finding a loose one. When I find one, I focus my attention on dislodging that brick. Sometimes that’s all you need to bring-down the wall and get negotiations back on track.
Most impasses can be overcome — particularly when the parties trust the mediation process and understand that impasse is not unusual. In many cases, it’s expected.
I try to let the parties to own their impasses, and get involved in resolving them. That’s critical. Each case has its own timeline for settlement, and very few will settle before the time is right. Skilled mediators can assist parties in avoiding and overcoming impasses, and a mediator’s ability is often the key to whether or not a case is successfully resolved.
Laurence J. `, et al., Mediation Skills and Techniques (2008).
Dwight Golann, Nearing the Finish Line: Dealing with Impasse in Commercial Litigation, Dispute Resolution Magazine, Winter 2009, at 4.
Kimberlee K. Kovach, Mediation: Principles and Practice (2000).
Rodney A. Max, Breaking the Impasse – The Unique Mediation Opportunity, 2006,