The mediation has gone on for hours. The parties have negotiated slowly and methodically, but remain far apart. The negotiations are not in the “zone of agreement,” the mediator’s term for closing in on a settlement amount. The negotiations have reached an impasse.
Impasse occurs to one degree or another in nearly every mediation. It is a frustrating moment for the parties and counsel, but it is the moment of opportunity for the mediator. After all, breaking impasse is what mediator’s get paid to do. So, what is in the mediator’s toolbox to break the impasse and reach a settlement.
There are many tools. Choosing the right one for each impasse separates the facilitator from the closer. The first tool is the joint session with counsel. In this session, led by the mediator, each counsel discusses their views of the issues directly with each other and expresses their frustration with the state of negotiations. This meeting, if properly timed, can have a cathartic effect and clear the way for continued negotiations. I have witnessed cases actually settle in this joint meeting. While that is rare, the more common effect of the meeting is that it provides momentum and fosters a more positive and productive negotiation. One should never underestimate the effect of a direct discussion and sharing of views as a means of breaking through an impasse. Too often, mediators leave the parties in their own caucus room and simply declare that the negotiations are at an impasse and the mediation is over. Bringing counsel together not only allows them to clear the air and vent their frustration, but it provides the mediator with new information to use in breaking the impasse and moving on to settlement.
Other tools include negotiating within ranges, brackets suggested by the mediator as opposed to the parties so no party as to own the numbers, a discussion of goals and bottom lines in caucus leading to a mediator’s suggested settlement number, and of course, the mediator’s proposal. I will discuss each of these tools in future blogs as each deserves to be examined and evaluated as an impasse busting technique. Suffice it to say, overcoming impasse is the reason mediator’s are hired and an important, if not the most significant, contribution that mediation offers to the parties in a litigated dispute.