Patience is, in and of itself, a great challenge and it often holds the key to breaking through a seeming impasse. – Daisaku Ikeda
Embrace impasse. Embrace failure. Not all mediations are meant to be successful. When the moment comes where impasse is inevitable, the mediator must step in and help define the failure, next steps, and other alternatives to litigation so that their clients walk out the door in a better position than they came in, even if they are still headed to the courtroom.
Facts are muddy, parties have trust issues, and a commitment to litigation. Each of these are common causes for impasse, and each provide an opportunity for the mediator.
Facts are Muddy
There are three sides to every story: what the plaintiff tell his attorney, what the defendant tells his attorney, and then what both tell the mediator. As early as opening statements it can be obvious the facts are as clear as mud. Muddy facts by themselves do not cause an impasse, but clearing them up may.
Once lots and blocks in a title dispute are straightened out, or timelines clarified, a sudden need for more discovery and investigation prior to a resolution are necessary. A mediated settlement can’t run ahead of the facts.
This is where mediators shine. The mediator is in the best position to clarify and build agreement as to facts and timelines. Missing, critical details emerge openly as the parties describe the problem, correcting as they go, until a clearer picture appears. Counsel gets a better grip on the underlying issues and causes. This isn’t impasse, it’s success.
Trust issues can plague a mediation on two levels. First, for clients, a black robe and a court order mandating an outcome feels far more secure than an agreement worked out with that nice mediator. The magic of a judicial signature is missing. The parties don’t trust the process because broken trust is why they are in litigation in the first place. Mediation doesn’t have the certainty or finality needed in the client’s mind.
Second, clients may have an ongoing relationship, either as co-parents or business partners, the trust that was damaged may be what is holding them back on reaching and accepting a resolution.
Reconvening at a later date is an option, but before that is considered, a mediator can help define the problem by getting agreement on what the obstacles are. This creates the opportunity before reconvening mediation to take those steps and build a new foundation for trust.
So many mediations echo with “if he/she would only?” All of those “would have/could have/should haves” are future opportunities. Clearing the air may not generate a mediated settlement agreement, but it can lower the animosity level between the parties. Communication has been reopened, and the discussion has moved from the problem to the people.
Lay out the next steps, including reconvening. Make sure each party is clear as to their responsibilities. For communications, be exact on the methodology and timing, including when responses are due. For tasks, ensure that the communication about the task as well as what the task includes is explicit. Don’t leave wiggle room for future shenanigans.
Commitment to Litigation
Pride, ego, being a winner. All three create an unwavering focus on a litigated outcome. So focused that a mediated settlement has no traction. Winning is just too important. Experienced professionals know that no court outcome is a sure thing, and juries will do as juries will do. . It isn’t a lack of good faith, rather, it is a need to feel they have not lost. Clients, however, carry the double burden of emotional and financial ties to the case.
That need can take on mythological proportions to the point where the mediator has to become the dragon slayer. Normalizing expectations of the litigated outcome, an impartial examination of court and attorney costs, additional time taken from their families and work, responsibility for the opposing side attorney’s fees should all be discussed openly and frankly. It’s important to know what the dragon really looks like, how big it really is.
The time frame of a mediation is limited, and for some clients that isn’t enough time to let go. Sometimes you really do have to sleep on it. The information and analysis the mediator helped create will go home with them. Then, input from family, friends, co-workers, and employers will also feed into their decision matrix. So the time understanding the risks going forward is well-spent.
The clients in the room with you created the seeds of the problem. The mediator may not be able to bring a solution to full bloom, but can create the space for the green shoots to sprout in coming days.
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