Needless to say, the best way to deal with impasse is to prevent it altogether. One way of doing this is by proactively addressing the prospect of last minute add-ons — or additional claims and issues introduced after a substantive agreement has been reached. Typical add-ons include confidentiality agreements, mediation costs, and who will prepare the settlement documents — and they can all derail the settlement process.
To avoid this problem, I try to bring-out these issues as early in the process as possible — and I repeatedly ask the parties, during negotiations, if there are any additional issues that need to be considered.
When an issue is added on at the last minute, I’ll try to assess whether it’s a tactical ploy — or merely an oversight. If it’s oversight, a reasonable explanation will often smooth over the problem — but a little face-saving may also be necessary. If it’s a ploy, I’ll usually confront the party adding it in. In any case, the earlier add-ons can be uncovered during negotiations, the likelier they can be handled without causing impasse.
Changing The Dynamics
When parties are unable to avoid impasse, there are a number of ways you can change the dynamics of negotiations — including:
Changing the negotiations’ focus
When negotiations get locked-up over a specific issue or position, parties often lose sight of their core interests. (EXAMPLE: In an automobile accident case where the plaintiff alleges negligence on the part of the defendant, the issue might be whether the defendant was negligent, and the plaintiff’s position is that the defendant was negligent. The plaintiff’s interest is in fixing her car and being compensated.)
That’s when I’ll recommend we move-on to another position — and come back to that one after other issues have resolved. The goal here is create some momentum in the process by refocusing the parties’ attention on their core interests; when do that, they’re reminded of the bigger-picture need to push negotiations toward satisfying those interests.
Doing Something Different
Take a break, call a caucus or bring the parties together. Meet with just the attorneys or meet with just the parties. Shake things up. If what you’ve been doing isn’t working don’t be afraid to change the routine. Sometimes it’s all you need to change the focus — so the parties can see things differently. Another approach I often try at this stage is to personally request a move by the parties. Sometimes, it’s easier for a party to move if the mediator presents it as a personal plea.
Encouraging The Parties
Positive reinforcement can go a long way in motivating additional movement. Which is why I try to be positive and encouraging about progress, no matter how small that progress is.
Exchanging More Information
Consider the possibility of exchanging more information on the issues, so the parties can better consider the other parties’ position. Information is power. The more information the parties exchange, the better the decisions they can make. I usually combine this with another approach to get parties to focus on their interests.
Focusing On The Testimony Of A Witness
Consider focusing on a key witness’s testimony, and having the parties discuss the significance of that testimony. I like to put the testimony to a reality test, and explore what effect it will have on the outcome of the case.
Enlisting The Help Of The Parties
Try conducting a brainstorming or option-generation session. Seek to broaden the scope. This can be done with the parties and attorneys, or with one and without the other. Don’t assume there is only one way to resolve an issue. The parties have the greatest stake in the lawsuit, so enlist their help.
Calling On Leadership
In cases where you have a number of participants, both lawyers and non-lawyers, it’s helpful to identify a leader (or leaders) on each side. When impasse occurs, pull the leaders aside and enlist their help in getting things back on track. If you can bring together leadership from both sides, it can often help refocus the parties, rebuild trust, point-to a new direction and jump start negotiations. I’ve found that leadership usually has the leverage with the other participants to help get things moving again.