It’s late afternoon in a one-day mediation. The parties are at an impasse. What are some ways to reach resolution?
1. Challenge perceived best alternative to a negotiated agreement (BATNA). Should the parties re-examine their perceived best alternative to a negotiated agreement? Is their assumption unrealistic about the likely result after trial?
2. Challenge perceived best alternative to a negotiated agreement (WATNA). The parties may have an unrealistically sanguine expectation about the worst alternative to a negotiated agreement. Analyze carefully potentially dire consequences of losing.
3. Focus on nonmonetary factors. Especially in resolving commercial disputes, have the parties considered non-monetary factors to achieve a settlement, such as a license agreement, a covenant not to compete, or an agreed-upon public statement?
4. Change the players. The negotiators may have become so entrenched in their positions that they are unwilling or just too stubborn to be open-minded about settlement alternatives. One way to break through impasse is to change the players.
5. Change the venue. Consider suggesting that the decision-makers meet elsewhere, possibly over a meal or drinks, to enhance the likelihood of greater flexibility in positions. Of course, you can change the players and the venue simultaneously.
6. Ask: What if? Be prepared for the mediator to ask both parties: “If I can get the opposing party to alter its settlement position by $X, how much are you willing to alter your position?” Be prepared for the mediator to ask: “How far are you willing to go to settle this case?” By this process, a mediator attempts to narrow the gap to the point that any remaining dispute is negligible.
7. Accept the “double-blind” proposal. If both parties agree, the mediator presents to each party a “double-blind” proposal, by which the mediator confidentially presents the same proposed resolution to each side to accept or reject.
8. Take a break. Once you reach impasse, a break can provide a welcome respite for everyone involved, during which the parties can re-evaluate their positions. Refreshed after the break, the parties or the mediator may come up with a new approach, some creative way to break through impasse.
9. Resume another day. This is the last resort, when all else has failed. It is possible that one party needs more information before completing the mediation process, or that one party wants to consult with someone as a result of the mediation process thus far. Resume without undue delay, to keep the momentum going.
These impasse-breakers are not mutually exclusive, nor are they the only ways to break through impasse. Use whatever combination of strategies that may be effective in your case.
Stewart Edelstein, who taught clinical courses at Yale Law School for 20 years during his 40-year career as a trial lawyer, is the author, most recently, of How to Succeed as a Trial Lawyer, 2d ed. (ABA 2017).