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.