Impasse can be an opportunity. View the possibility of impasse not as a problem, but a portal—“a crack where the light can get in.”2 Visualize, for yourself and your parties, that impasse may be an opportunity to abandon the pursuit of some perspectives and look at other, unconventional ones. Parties might even be told up front, “We may get stuck at some point, and that’s okay—we can work through it!”3
Parties share the burden of impasse. When faced with general resistance, ask the parties, “What would you like to do next?” and pause expectantly. Or say, “Frankly, it looks like we’re really stuck on this issue. What do you think we should do?” These questions remind the parties (and you) that they actively share the burden of the impasse.
Ascertain the parties’ perspectives. Ask the parties to describe their perspectives on why they appear to be stalemated and/or how they can try to overcome their different perspectives on valuation. Parties sometimes need to internalize and focus consciously on their deadlock, and both you and they also may need a reminder that it is their dispute. Also, this provides a psychological time-out and change of pace, which may lead to new insights. A time-out can also be helpful when a party seems a bit inarticulate, fearful, or confused to give him or her the opportunity to write down what he or she would like to say.
Avoid the premature caucus. Don’t go to caucus too soon just to deal with resistance or a perceived impasse—it can deteriorate into a “ping-pong” match where the parties merely conduct a debate or auction through you as intermediary. Parties need to grapple jointly with their issues as much as they productively can. Generally, think of the caucus as a tool to be used, not a routine process step. Sometimes, attorneys are too fond of caucusing, and depending on the issues in the case, the mediator may need to help them see the benefits of beginning and working substantially together. Further, you may want the parties (or their counsel) to take responsibility for their ideas, rather than hiding behind you.
Take a break. One of the most basic techniques for overcoming impasse is to simply take a break. Tensions may be reduced, and often things have a way of looking different when everyone returns. Perhaps suggest that the parties try to return with new ideas. During the break, change something—take off your coat and roll up your sleeves, move to another room, rearrange the room you are in, provide food, candy, or soft drinks, etc. Suggest a “fresh look” when they return, or do a global summary (see below).
Move on to another issue. A simple and very useful technique in the face of resistance is to ask the parties if they would like to set aside the issue temporarily and go on to something else—preferably an easier issue. When you settle some issues, you build momentum toward resolution of other issues. Getting agreement on something (anything, even process details) creates positive psychological ambiance.
Use reality checking questions. For example, “What do you think will happen next if this isn’t resolved here [or if this goes to court]?” Draw out, through questions and your general information, the emotional, financial, and other costs and risks of delay, litigation, or doing nothing. If a party appears naive about his or her rights and positions, you might suggest the party take a break to check with his or her attorney, accountant, etc.
Consider caucusing with the representatives alone. If both parties are represented in the mediation, and there appears to be resistance linked to different views of the merits or worth of the case, consider a caucus with just the representatives. It may be easier to speak frankly in the absence of the parties. Given the representatives’ considerable influence with their clients, the session may prepare the representatives to “reality check” with their clients after they frankly reflect on the merits and valuation of the case without the clients present. You might ask each to summarize the relative strengths and weaknesses of the case, and facilitate a discussion of a fresh perspective on what the clients need to come to resolution. Sometimes, this will produce a discussion of how to deal with client perspectives, and new opportunities for creativity may be presented. Don’t be surprised if one or the other attorney asks your help in reality checking with his or her client. However, don’t spend too much time with just the attorneys without bringing the clients back “into the loop.”
Politely handle a dominating representative. If one of the problems is an attorney or other representative who dominates the conversation unproductively, try attending the client frequently to give him or her a full opportunity to speak. Look at the client with an inquiring facial expression occasionally while the representative is speaking, or ask occasionally of the client, “Do you have anything to add?” or “Is that the way you see it?” If the representative is impairing the mediation, take a break and ask to speak with the representative one-on-one (explore how the dynamics are unfolding, how the other side is responding, and how things might be improved). Remember, however, that it is up to the client and the representative to choose who speaks. It also important not to humiliate anyone or threaten the attorney’s perception of his or her power.
Ask parties to describe fears. Ask each party to describe his or her fears about proceeding (but don’t appear condescending, and don’t make them defensive).
Clarify that interim issue resolutions aren’t final. You can sometimes assuage fears about resolution of one of several issues by making it clear that no issue is finally settled until there is resolution of all issues. This will manage expectations and avoid perceptions of bad faith. A party may need to reconsider a supposedly settled issue in light of the proposed resolution of a later one. Generally, however, don’t make it too easy to reopen settled issues.
Give a global summary. Try a global summary of both parties’ positions/interests and what they’ve said so far, telescoping the case and the mediation so that the parties can see the part they’re stuck on in overall context. Sometimes, the tough issue will seem less important. The global summary can be part of a content free challenge (see above).
Summarize areas of agreement. State all the areas the parties have agreed to so far, praise them for their work and accomplishments, and validate that they’ve come a long way. Then ask whether they want to let all that get away! A variation is to suggest (if true) that the parties probably have reached a point where they are more likely to settle the case than not settle—which may help them redouble their efforts toward how to resolve things rather than whether to resolve things.
Accentuate the positive! Studies show, and common sense would indicate, that when faced with two options that actually involve identical outcomes, one of which is phrased positively (e.g., “vaccine A should save the lives of 200 of the 600 people in this village if this disease hits”) and the other negatively (e.g., “vaccine A should hold deaths to 400 of the 600 people in this village if this disease hits”), people usually will choose the positive.
Develop criteria for an acceptable outcome. Sometimes it is helpful to take a time-out from developing options per se and help the parties define something more basic in the form of criteria for an acceptable outcome—e.g., “Before we focus on specific options for settling this matter, would you like to try to define the qualities that any good outcome should have?” Usually, these general criteria will track reasonable and joint interests like fairness, acceptability to ratifiers, etc. They give the parties something positive to agree on. Later, you can test options against the criteria.
Be a catalyst, and be creative. Shake things up a little! Offer a “what if” that is only marginally realistic or even a little crazy, just to see if the parties’ reactions help them to get unstuck.
Ease tensions with humor. But be careful, as the parties might misinterpret. Generally, your self-deprecating humor is safest.
Use homilies. “As long as you stay flexible, you can’t get bent out of shape!” “If there is a will, there is a way.” “Remember that courts produce decisions, which may or may not be justice.” “All polishing is done by friction.” “Let’s keep our eyes on the donut and not on the hole!” Some mediators provide parties with a written list of homilies or quotes from famous people that describe the wisdom of resolving conflict.
Suggest the use of chance. Sometimes, a coin flip may be a good way to resolve a sticking point. Or, the thought may be absurd enough to help the parties focus afresh on what really is at stake or what other creative possibilities might be.
Express your own frustration. Once in a while, it may be useful to let the parties see your own anger or frustration at the impasse. Particularly if you have been a good and patient guide so far, the parties may be quite struck or even shocked at your perspective—and that kind of shake-up may be just what’s needed to foster new perspectives.
Use the clock. Occasionally remind the parties what time it is and how long everyone has agreed to be together today. As you get within an hour or so of the “deadline,” let folks know this—not coercively, but as a means of helping them sharpen their focus on dealing with what is important.
Remember that it’s okay not to settle. Keep in mind that your job isn’t to overcome a roadblock per se, but to help the parties engage, analyze, and negotiate positively and constructively. The parties are free to stick with a position—they have a right to act on their own choices, and you have no business coercing the parties into a settlement. Sometimes, paradoxically, reminding the parties that “it’s okay not to settle” gives them freedom to take a fresh look.
Likewise, sophisticated negotiators think they know when not to settle—i.e., when the better strategy is to let things stew awhile or proceed into litigation. They have learned to resist psychological pressure to settle now lest the deal get away, as “another deal is always around the corner.” If you appear to these negotiators to be pushing resolution, they may lose respect and trust for you and the process. Offer these negotiators a full opportunity to reflect on options, but do not oversell resolution.
Propose ending the mediation. You can always propose ending the mediation yourself if things don’t appear to be going anywhere, and add, “but as long as you are willing to work on this and consider movement, we can continue.” Parties who have invested in the mediation (and who have internalized the “settlement event” mentality discussed above) often don’t want it to fail, and may be remotivated to find ways to come unstuck. This approach is particularly useful where one party may unconsciously enjoy the attention the process provides, or enjoy the other party’s discomfort. On the other hand, it is the parties’ right to end the mediation, and sometimes they need to be reminded of that—so don’t fight the parties.