Overcoming Impasse In Mediation, Part 1 of 3

February 28, 2017By Bill RatliffUncategorized

Impasse. Arguably the single most dreaded word in the world of negotiation — where the worst outcome is no outcome. Impasse occurs every day — in business, marriage, life — and typically results when one or both parties in a negotiation refuse to make further concessions on a particular issue.

As much as I despise impasse, it’s the rare mediation that doesn’t reach a potential impasse somewhere along the way — which is why it’s so important for mediators to help parties either overcome them, or avoid them altogether. Impasses generally fall into one of three groups (substantive, procedural or emotional) — and it’s not uncommon for impasse to result from a combination of all three.

Substantive Impasse
The most easily-identified of the three, substantive impasse results from one or both parties concluding that their monetary (or substantive) interests are not being met.

Procedural Impasse
This situation usually occurs when a party believes the structure of the negotiations, or the mediation process itself, is being conducted in an unfair or inappropriate manner.

Emotional Impasse
This happens when a party feels that their emotional interests have not been respected through the process.

Mediators can usually prevent procedural and emotional impasses by managing the process — paying close attention to details such as neutrality (ensuring that both parties perceive the process as fair), and to the parties’ emotions. As long as parties feel they have the opportunity to be heard without being bullied, intimidated or cut off, procedural and emotional impasse can usually be eliminated.

Preventing and overcoming substantive impasse (which often starts with a “take it or leave it” offer, and can occur at any stage of negotiation) isn’t quite so simple. There are numerous tactics for dealing with substantive impasse — most of which involve changing the dynamics of the process. A simple way of saying this is “trying something different.”

Closing the Gap: Four Approaches
Sometimes impasse occurs as the parties are closing the gap, or wrapping-up negotiations. It usually involves an amount of money and the feeling (of one or both parties) that they’ve already given too much — or that they’ll lose face if they give anymore. Even though settlement is close, and the parties know the matter should be settled, they become adamant that they can and will give no more.

The most common approach used to close the gap is to encourage parties to split the difference. It’s typically the best way for them to share the pain.

Another approach is to use random chance. For instance, if the parties are $4000 apart, write-out, on slips of paper, the amounts $0, $1000, $2000, $3000 and $4000. One slip of paper will then be selected randomly, with an agreement that the one chosen will be the number both parties accept. This allows the parties to save face while introducing a game of chance into the mix.

A third approach is you cut, I choose. Here one party divides the object of value and the other party has first pick of the resulting division. This often works when the item in dispute is divisible, or when there is more than one item.

A fourth approach involves developing other processes. One option here would be to retain a third party to decide the gap issue. That person could be an expert, a non-expert, a trusted neutral, a relative, or anyone else the parties agree on. The third party would be authorized to decide the gap issue only. Another option in this fourth approach would be to agree to a med/arb — which combines mediation and arbitration, and allows the mediator to decide the gap issue.

 

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