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Keys to Mediator Success: Formulas for Agreement

(Review Parts 1, 2, 3, 4, and 5)
This article provides helpful tools for settling impasse and reaching agreement.


“Would you split the difference if they would? Without trying to cut further? No guarantees. I can find out and let you know.”

“Suppose you each write a confidential offer on a slip of paper with the understanding that there will be no agreement unless the gap between the two confidential offers is reduced to _____. If it is, the remaining difference will be equally split and each party will be bound to that amount. [Later] Not quite. Want to try it again?”

[Double Blind] “I’ll write the same number on papers for each of you to look at. This number is what I believe has the greatest possible chance to be accepted by both sides; not a judgment on fair value. Without letting the other party see what you’re doing, mark ‘Yes’ or ‘No’ before returning the slips to me. If I see both marked ‘Yes’, I’ll announce agreement; if I see ‘No’ on one or both slips we’ll forget about it and I won’t tell who, if anyone, was willing to accept the number.”

“Who would be willing to flip a coin to win the amount of this last gap?”

“How about this: The gap is $_______. We divide it into 10 increments on separate pieces of paper and one person draws a slip, showing the amount she/he will get.”

Impasse Prevention

[See also Motivation, Introduction and Ground Rules]

”Nothing is agreed until everything is agreed. You can settle each issue tentatively so that if you give something you’ll see what you get in return.”

“Each of you is entitled to your own point of view. It’s not the same because you’re not the same. You have to be able to see the other’s point of view in order to create a solution between you.”

“Part of my role is to avoid frustration by alerting people to adjust to different negotiating styles. How would you characterize the style of the other decision maker? Fast? Intuitive? Deliberate and analytical? Also, it’s best to refrain from using ‘bottom line’ language and stay flexible.”

“This is a negotiation. It’s not about trying to convince the other party you’re right and they’re wrong. It’s about making a deal.”

“Is there anything beside money to bring back onto the table?”

“The key to settlement is to make a proposal that makes it difficult for the other side to walk away. Make it good enough so they feel that rejecting your proposal might be a mistake.”

“Everyone sees the same things in a different way and we’re all entitled to our own perceptions.”

“You’re going to have to find some way to work together.”

“I’m sure we can find a middle ground.”

“Getting to a consensus that works for both of you can be done with a lot of determination. Are you willing to work hard to get a mutually satisfactory result?”

“Maybe your solution will be supported by logic; but it doesn’t have to. You can always just pick a solution that feels good enough. You don’t have to justify it.”

“Since you’ve more to explore, I don’t see any compelling reason why you’d have to go to court.”

“Wait! You’ve been down that road. Take a break. Try this: Keep your attention inside your body long enough for three deep breaths. What are your sensations? What’s behind the emotion that goes with that sensation?”

“Take a break in blaming and victimhood, and reflect on what might be your own contribution. Then take some responsibility for solving the problem.”

“When there is room for at least a little bit of honest gratitude; and when that’s expressed out loud, it adds a lot of value to the situation.

Closing – Finalizing Agreement; Congratulations

"Before we conclude, I’d like to help you nail down the specific terms of what you’ve both agreed to.”

“Now we just need to finalize and formalize the agreement.”

“Are there any other specifics of the agreement we need to talk about?”

“Is there anything else that’s going to prevent you from signing this agreement?”

“When you explain the agreement to your strongest critic, what are they going to say is wrong with it? How will you explain why you agreed?”

“Well done. Congratulations on reaching a resolution. You earned it by working hard and working together to find an acceptable solution.”

“Again, I want to thank you both for coming together today. I think this has been a very successful session and you’ve both worked hard to deal with some difficult issues and come to a positive resolution for both of you.”


[This section is divided into 18 sub-sections according to

specific strategies in dealing with impasse as it arises.]

1.Impasse Approach: Review Interests and Goals

“What are the most important gains for you in what you’ve accomplished so far?”

“It’s the actual reality to be dealt with. You can ask wishfully that things might be as you’d like them to be or you can deal with them as they are.

“We can’t always get what we want; but you might find you can get what you need by working the process a little further.”

“From your inquiry into their interests and needs, what are some other things they might regard as positive in exchange for your needs?”

“You obviously have meaningful goals to reach for and obviously waiting for a perfect solution to float your way usually won’t work. The way to make progress is to aim high and make meaningful effort toward steady incremental compromises.”

“ Have your interests changed any over the course of today? What is your current set of main interests and minor interests.”

“What other interests and concerns do you have that haven’t been talked about yet?”

“How about your goals? After hearing the discussion do any of your goals seem more or less attainable? More or less important?”

“What are the criteria for an acceptable outcome? Before we focus on the specifics would you try to define the qualities any good outcome should have?”

“Why are we here?”

“Now let’s get down to brass tacks; what do you really want?”

“If you could end this now, what would be acceptable to you?”

“ We’re rapidly moving toward impasse. What do you want to get out of this today?

If we don’t find out where both parties want to go with this today, we’re done.”

“Let’s see if in what ways your goals and theirs are mutually reinforcing.”

“There’s no such thing as a conflict that can’t be ended. Conflicts are created, conducted and sustained by human beings, and they can be ended by human beings. I believe this one can be ended and will be.”

“How valuable to you is it to get this over with, get on with your life, avoid future contact with them, reduce stress, regain control of your life, begin using the money for something constructive, or other values in your life. Compare that with the last offer.”

2. Impasse Approach: Benefit of Success; Cost of Failure

“A settlement avoids public exposure. Judgment from a court goes on the public record and it’s not good for reputations. It also increases the cost of credit..”

“Payment collection is much easier when the paying party agrees to terms.”

“Closure today saves years of waiting for the legal process to run its course.”

“You’ve already invested considerable time and energy in this. Make it pay off by going the last little bit toward agreement.”

“Would the expenditure of your time and energy in litigation gain you enough to be worth passing up this opportunity? When the gap is only _____?”

“Visualize yourselves at the edge of a tall cliff looking down and know that you could fall all that way down and end up at the bottom unless there is a little mutual flexibility to keep the process going.”

“Here’s where you’re most likely to agree, whether it’s fair or not. It may well seem somewhat unfair but the best choice(s) to stop the pain and go forward free of conflict. As I see it, ____.”

“You resolved ___%. Would it really be worth litigation for this last ____%?”

“It’s like you’re going forward on a difficult hanging bridge across a raging river and you’re almost to the other side. Do you want to make it the last little going all the way back?”

3. Impasse Approach: Uncertainty and Risk

“Do you really want to trade the certainty of what will happen today for uncertainty and risk of what will happen if it’s not settled and someone else makes the decision for you?”

“Consider the downside if this case goes any further and you’re forced to have an audience with a judge where law books determine the outcome instead of you.”

“If it goes to a judge, the judge may well decide something neither of you like.”

“What are you going to do if there is no agreement? What is the other party likely to do?”

“How many alternatives do you have? Is it between here and litigating in court?”

[BATNA] ] “Do you have a Better alternative to a negotiated agreement?” “What do you hope to get if you go to court?” “What do you think are your chances of

getting that outcome?” “What will it cost you to get that outcome?” “What are

the non-monetary consequences that might result, such as having to deal with

____ or stress of ____?” “What do you think are your chances of collecting a

judgment if you get one?” “What are some of the reasons in your analysis?”

[WATNA] “What would you expect might be the worst that could happen?” “If

you don’t settle today, and you don’t get what you want from a judge, what

would be the time, effort, cost and emotional worry to take it through the legal

process such as delay, discovery, attorney fees, court costs?” “What value might

you put on a disruption of your life keeping you from more productive activities

and the stress of fighting in front of a judge?” “What other downsides can you


“What’s a “Mid-case scenario” or “most likely” scenario between best and work case outcomes?”

“Conversation and dialogue is the least expensive part of any conflict.”

“What’s your cost/benefit analysis?”

“If you let a judge or jury decide this case have you considered you may end up paying even more /(less) than the choice presented here.”

“You can’t rely on the judge; so rely on yourself.”

“Yes, you could give up and try the litigation “lottery”; but it’s about as risky as doing brain surgery with a chain saw.”

“Your choice is a sure gain versus some probability of future gain.”

“Here’s what lies ahead: _____. Do you want to settle this in court or is there a businesslike way to handle it?”

“There’s a lot of risk and downside in this case if you don’t settle. There’s a reason why over 90% of cases settle.”

“Now, in this private session, I’d like to ask your attorney to review what a trial would entail.”

“It’s hard to get away from making some form of decision. There comes a time when failure to decide … like afraid to make a wrong decision … becomes a decision itself.”

“You can think of the circumstances of your dispute as the ‘territory’ you both occupy. When you let a judge invade your territory you’ve lost control to unpredictable and arbitrary action.”

“In my experience the legal system doesn’t always work the way you’d hope.”

“What matters to a court is only part of what matters to each of you.”

“Both of you could go to court, but I don’t see how that’s a better option.”

4. Impasse Approach: How Confident?

“Give yourself a reality check. What’s you certainty level? 90%? 80%? 50%?”

“How strong is the legal merit and provable damages in this case?”

“How weak is the legal merit in defense and the possibility of facing a high verdict?”

“What do you want? What are you doing to get it? Is that working? If not, what can you do differently to make it happen?””

“Consider what you have control over and what you don’t:

Behavior or decision of judges — No

Decision of juries — No

Movements by the other side in negotiation — No

The way the other side evaluates the case — No

The way the other side opens with lo-ball or high-ball offers –No

The pace the other side moves with counter-offers — No”

“So, what’s left?

Your own case evaluation — Yes

Your own negotiating range — Yes

Your own movement at any time — Yes

Your own stopping point in negotiations” — Yes”

“Take a long hard look at the reality of your situation.”

“Test your perception: How much is it like dreamlike desires vs. hard reality?”

“At this point you might step back and ask yourself: “To what extent am I approaching this as an exercise in make-believe; in a fantasy of ‘let’s pretend” I’m going to get everything I want.”

“Let’s try a reality check from this standpoint. Have you considered ____?”

“Have you had experience with the same kind of case, same facts, same judge?”

“Ask yourself if your experience with situations just like this is sufficient to predict what the judge will do.”

“What people often don’t take into account is the fact that spending more time thinking about all the things in one’s own case results in overconfidence. Opposing facts, evidence, arguments and legalities don’t get thought about as much, distorting one’s judgment.”

“You know you lack (e.g. the necessary written documentation to support your case) don’t you? How would a judge or jury be convinced that you ____? Plus, as you may be aware, ___ has ____ (e.g. two witnesses, both prominent in their field prepared to testify on their behalf.)”

“May I be a Devil’s advocate for a bit? Will you me permission to be blunt and direct?”

“May I give you an outsider’s view of it:?”

“How well do you meet the four-part legal standard of reasonableness? 1. Duty to

care as a reasonable person would. 2. Breach of duty. 3. Causation with proof.

4. Damages with certainty of value.”

“We could argue or dispute the legal aspects all day and night. Or, we could try to get a negotiated solution to resolve them in a manner that helps satisfy the aspirations of both parties.”

5. Impasse Approach: Fairness and ‘The Principle’

“Reasonable minds can legitimately differ on the degree of fairness in any situation.”

“There’s no absolute measure of fairness. There’s room for different perspectives; differences on ‘evidence’ & ‘facts’; differences on interpretation.”

“The difference between a freedom fighter and a terrorist is merely one’s perspective. The same person can be perceived as either a Warlord or a Liberator.”

“The same behavior can be interpreted as either ‘rigid’ or just ‘consistent’. Stingy or thrifty. Rude or just frank. Simultaneously, by different observers.”

“As an example of different perspectives, sex three times a week could be viewed as ‘very frequent’ or ‘seldom’; depending on different perspectives.”

“If I were to ask each person in the room to describe what’s been going on I’d get a different answer from each person. No two alike. It’s unrealistic to require someone to match one’s own viewpoints and behavior styles.”

“For any act there are as many interpretations as observers. This is liberating. A limber, open mind gives one more choices on how to react and avoid being locked into a polarizing struggle.”

“People always give more generous interpretations of ourselves than others give us.”

“In the heat of argument, it’s easy to loose perspective and just react. That’s just human nature that happens to everyone.”

“Every angle on the evidence has its own perspective.”

“Whenever we don’t see the whole picture, we can’t be sure we know what’s true.”

“Each of you is entitled to your own point of view. It’s not the same because you’re not the same. In order to create a solution between you, it helps a lot to be able to see the other’s point of view.”

“It’s unrealistic for everyone to hold same view. It’s wishful thinking, a pipe dream not likely to happen.”

“Of course you are entirely free to choose which point of view you take. And do you allow that there might be other legitimate points of view?”

“Like most people, I have a hard time remembering that we all see the world through our own particular lens.”

“When we begin to see the possibility of other perspectives it’s easier to deal with solutions.”

“We tend to assume we’re sharing the same reality when in fact we’re each living in a highly personalized internal world, interpreting and responding differently. Try visiting their reality.”

“I hear your devotion to principle. If you were to hold out on principle, it might feel good for a while, but would it really make the world better, by sacrificing your economic self-interest?”

“There is always room for disagreement. People can disagree and still deal with each other, like in a family “

“I don’t know if it applies here, but there’s a saying that striving for “Perfection” usually gets in the way of finding something good enough.”

“The ‘best’ is the enemy of the good.”

“As Warren Buffet says, it’s better to be approximately right than perfectly wrong.”

“Your next offer doesn’t really have to be absolutely “right”. You just have to come up with a number where they can feel like they earned it.”

“I’m going to talk to them about how a big investment in ‘being right’ can sometimes interferes with solving the situation. While I’m gone, it’s a chance for you to ask yourself the same thing.”

“Do you want to be right or be done?”

“I understand your point of view, and sometimes the issue isn’t whether you’re right, it’s whether there’s any value in being right.”

“Right or wrong, at this point your best shot may be to shut this down with a final acceptance so you don’t have to think about it any more.”

“You probably have good reasons for feeling that would be fair. I like to listen to them.”

“Tell me some of your rationale about why that might seem fair.”

“It’s not possible to replay the past to make things feel more ‘fair’; but it is possible for you two to set aside the past, rise above blame, talk together, explore your alternatives, and create a vision for yourselves going forward.”

“Another way to think about it is to win, not by getting everything you want; but by not losing more than you otherwise would.”

“Another way to think about it is to subordinate the arbitrary goal of fairness and instead strive for a mutually satisfactory outcome.”

“Did you think the other side was just going to capitulate? Would that be fair?”

“Attachment to a particular outcome often creates suffering. Being open to creative possibilities is a way to end the suffering.”

“What are the possibilities?”

“Sure you were treated badly and you feel strongly about holding them accountable to a matter of principle. What they did might have been unfair, but we’re here for your best economic interest, not for a religious need to convert sinners, right?”

“Right & wrong or exactly truthful facts are beside the point now. You’re looking for a deal.”

“Did [the other party] wrong you with deliberate active malice? Or was it mistakes and misunderstandings?”

“Circumstances can make a difference. You might consider an offer based on what’s just and right under the circumstances.”

“A resolution doesn’t have to be “fair”, just “acceptable.”

“I understand it’s sometimes tempting to force an issue of principle in the hope of causing behavior modification on their part in the future, yet you could give yourself permission to abandon such a goal, depending on how realistic it might be.”

“Our human tendency is to believe truth and justice are only on one side. This case appears more complicated, without one simple answer.”

“All things considered, including what you stand to gain, it can show strength of character to just hold your nose and sign.”

6. Impasse Approach: Outcome Doesn’t Define You

“However this comes out it can’t damage who you are. That remains solid in your eyes and the eyes of others”

“As you know, the size of a particular pile of money can’t determine a person’s character or worth.”

“What you’re simply figuring out here is what’s prudently economically for you, considering all the alternatives and options under your control. That’s all. Nothing more.”

“Don’t let other people’s conduct get under your skin no matter how they behave.”

“Although an apology toward you would be nice to hear, you know who you are and your high worth is untouched by anyone else’s judgment.”

7. Impasse Approach: Review Accomplishments

“Remember where you were when we started. [Review] and where we are now [Review] after so much progress. I see that you all are trying hard to work toward a complete solution.”

“The progress you’ve made is evidence that more can be done.”

“We’re making progress, but we have less than full agreement so far.”

“By the progress I just summarized you’ve already demonstrated goodwill, good communication and an ability to create ideas that work. If you want to capture these gains, get more of them and get to full resolution … you need to keep it going.”

“You’ve already invested considerable time and energy in this. Make it pay off by going the last little bit toward agreement. You wouldn’t want all that to get away from you, would you?”

“The good thing is that both sides now recognize that unilateral victory is impossible and both feel there is a way out of your mutual pain by using fresh ideas, fresh alternatives.”

8. Impasse Approach: Divide & Concur … or…Back up to Big Picture

“Let’s look at some of the pieces.”

“Do you realize how close you are, when you add up the pieces, it looks like … “

“It’s sometimes helpful to step back and look at the situation as a whole in a different way.”

9. Impasse Approach: Morality

“What is the right thing to do according to your best principles?”

“You can do what you want, but is it really the fair, ethical, and right thing to do?”

“Ask yourself if it is really the right thing to do according to your best principles? How would you feel about yourself?”

“When you look back on today’s negotiation, will you be able to know you acted according to your own values?”

“You appear to be highly professional, intelligent and caring. What would have been a higher level of consideration in this matter?”

“If you were to do the experience that caused this dispute all over again, what would you have preferred in what you did or the way you acted?”

“Sometimes virtue is its own reward. No one and no bad treatment can take it way.”

“There’s always a natural tendency to focus so much on their character that your tangible interests don’t get enough attention.

10. Impasse Approach: What If’s

“How would you react if the other party made this suggestion? ___ How would you modify this suggestion?”

“What if you could design a payment plan. How would it look?”

“What if you include non-monetary compensation, such as ______? Any ideas?”

“How would you think about this other option? _____. I’m not trying to convince you to take it, only to make sure you know about it and can consider the advantages and disadvantages. The choice is yours.”

11. Impasse Approach: Role Reversal

“Stand in the other person’s shoes for a bit and look at the issue through their eyes. How would you resolve it if you were over there?”

“If you were them, why do you think your proposal wouldn’t be workable?”

“If you were them, why would you accept your proposal?”

“How would you tweak their proposal to make it better for you but still not too bad for them?”

“What are some of the criteria that would make it good for you? Bad for you?"

“How about you being the mediator for a bit. Tell me what you heard them say.”

“Be the jury for a minute. Try imagining it from a totally impartial, objective perspective.”

12. Impasse Approach: Future and Future Relationships

“I’ll bet you can each make a pretty good case for why it’s not your fault. But I don’t think it’s going to help you much to be arguing about it. You need to shift the question from “whose fault is this?” to “How might we resolve this problem ourselves?”

“How would you like to feel six months or a year from now as to what you did and as to your payoff for resolution today on this dispute?" "How can you make that future happen? “

“If compromise could resolve this today, how would the relationship be different than if you elect to fight to a public courtroom? “

“You might want to think about what extent this would ruin your rapport with them going forward if you push too far.”

“If you don’t resolve it and sue in court, maybe get some publicity, you will destroy the relationship. Do you want that?”

“Your apology can go a long way toward reconciliation. Randy Pausch (Carnegie Mellon professor who famously gave a “last lecture”) suggests these parts:

1. What I did (or said) was wrong. I won’t do it again.

2. I feel badly that I hurt you.

3. How can I make this better? Listen.

Best: Offer an action against your self-interest.”

“You might at least try saying something like: “We recognize you were _____ (injured). We wish you well.””

“The gentle art of loosing face may save the day.”

“Mistrust caused by past behavior doesn’t have to cripple your future and your options. You can put trust-guarding features into the agreement like incentives, monitoring and remedies.”

“You’re looking for a formula that gives you a better future than the status quo.”

“If the future is so uncertain, what kind of contingent agreement can you think of? Different obligations based on different future conditions or things that might happen. Some easily-measured external variables.”

“If you end up having to go to trial, and are worried about extreme outcomes, how about setting a guaranteed recovery in exchange for a cap on maximum recovery?”

“People in an ongoing relationship know the value of keeping it a good relationship by treating each other fairly.”

13. Impasse Approach: Parties Help

“What would you like to do next?”

“What do you think we should do?”

“Our process doesn’t seem to be working well right now and I’ve nearly run out of ideas and would like your help to come up with fresh ideas to keep it going. “

“What would you suggest for me to do at this point?”

“I’ve got more confidence in you than you seem to have in yourselves. I’m going to leave you to discuss it and decide what to do … and come up with a number. Then I’ll check back with you; we’ll discuss it and I’ll take it to the other party.”

“What additional information or new arguments might help [each side] rationalize or justify movement?”

“This doesn’t seem to be working right now. What do you suggest that will allow us to have a more productive conversation?”

“An impasse is a temporary condition and you have the power to end it.”

“If you want to continue the mediation and get your resolution, you’ve got to keep it going.”

“We need a little movement.”

“How do you see this dispute resolving itself?”

“I don’t want to throw my hands up in the air at this point and say it can’t be done. Give me a new idea I can take to them.”

“I’m totally stuck. I don’t know what to do.”

“If you were in my place what would you do to get it resolved?”

“Imagine yourself in my shoes. What would you tell yourself?”

“I think you both have to decide what to do now. It’s as good as it’s going to get.”

“From here, you’ll have to do it. It’s ultimately your responsibility.”

14. Impasse Approach: Neutral Evaluation (e.g. appraisals)

“Reasonable, rational people would be capable of settling this dispute. Leaving all feelings aside for a moment, what do you imagine two prudent neutral people would do in a situation like yours?”

“Would you like to consider hiring an expert to make an evaluation?”

“Would you like someone to create a discussion draft of a settlement agreement?”

“I know it’s frustrating and I’m with you; but realistically it appears the situation just won’t work out quite the way you might hope.”

“You know, I’m sorry but I just don’t see that happening today.”

15. Impasse Approach: Recess

“Perhaps this would be a good time to take a break, stretch, get some coffee or fresh air and be back here together in____minutes.”

“Why don’t we take some time now to recess, step away and allow time to mull these things over in your mind as you walk around inside or outside.”

“Before we finish today, each of you draft a confidential offer that won’t be presented to the other until a phone call made by _________ at _____p.m. on _______. Agree now that there will be no haggling during that call and during this recess. Either accept or reject one of the offers and return to this mediation on _____ at _________ to report the outcome.”

16. Impasse Approach: Draw Out Passive Participants (In caucus)

“We haven’t heard much from ___. Will you indulge me and give me permission to imagine it’s now a private meeting with ____, while you (all) stay here as a silent observer(s). I sense it will be useful to get everything we can out on the table.”

“Imagine you’re alone. Pretend they’re not here. This is your turn to be heard. Tell me your views on what’s going on.“

“What do you want to get out of this? [If his attorney objects …] “This is not a court. If he/she wants he/she can speak for him/her self."

“What are some your interests and concerns that haven’t yet come out in the discussion?”

“How will these this case impact your life? Your relationships? Your future?“

“I need you to talk to me and tell me what you want.”

“What are your hopes and expectations? What might you be worried about?”

“Great. This is good new information.” [To atty]: “How is what we just heard, these new ideas, something to factor into your team’s options and perhaps help you construct a next offer?”

17. Impasse Approach: Partial Agreement

“Maybe we might consider nailing down what’s been agreed so far and set aside some issues for later.”

“Why don’t we table that issue for a little bit and discuss another issue, one where I imagine you’re going to have an easier time getting resolution. Then we’ll come back to that issue later.”

“If you absolutely can’t work everything out today, would you like to agree to try an approach for a period of time and then meet again to discuss how it’s working?”

“Would you both like to try drawing up a “Declaration of Principles” to guide you on the way to a final agreement?”

18. Impasse Approach: Other

“We’re rapidly moving toward impasse, and if we don’t figure out where both sides want to move forward with this, we’ll be ending the session.”

“Think of someone you know well who’s a good problem solver. How would they go about solving this problem? What special twists would they add to it? What assumptions or constraints would they bring in or ignore?”

[In caucuses] “The other party is ready to leave. Before you decide to leave too, let the other party know.

“We might have a cross between mis-spoken and mis-heard to sort out. Let’s try again.”

“I’ll leave you some time alone to sort this all out. Let me know what you come up with.”

“You may want to think whether there’s a way to shift your resources around so that you could ___ and don’t have to lose ___.”

“What’s going on here? We’re so close to a settlement and your demand for an extra $___ is creating another impasse. What can we do?”

“I’m not giving you advice on what to do. In case it’s helpful you might like to know that in a different case, with somewhat similar circumstances, the parties were willing to consider ______________.”

“Just as food for thought, this is what helped resolve a conflict for another case: ____”

“Have you ever considered thinking about ______?”

“Sometimes it helps to step back and remember we have choices. How we receive messages; how we give out messages; how we see the world. Just try to think of a new perspective and view your situation from a different angle. [After expression of willingness] “That’s good to hear; what have you got in mind?”

“Let’s look at what’s in your best interest.”

“The gap is down to only $_____ remaining. Who else could benefit by transferring an amount to another deserving person or cause? Such as a child, a charity, a mutually incurred fee. Or invest an amount equal to the gap until you both might be ready to come up with a fresh resolution.”

“It was horrible (what you went through). The only thing I can think of that’d be worse is recycled dwelling on it, reliving it over and over.”

“In your analysis, what is your separate assessment of: Liability / Damages / Collectability …and… Liability: Duty, Breach, Causality?”

(In caucus) “I just had a thought. It may not have any merit; but what would you think of this kind of an approach?”

“Now I’d like to have just the principal parties meet, without attorneys, to discuss principles only … without discussion of numbers”

[When asked my opinion] “I believe it’s best for both parties to take full responsibility for determining whether or not they settle and on what terms, without my imposing my own judgment or opinion. Let’s think about how to analyze what you’re considering.”

“You are not alone in ever being at this point. Others have traveled the path and have successfully used some tried and true ways to close the last gap. Here’s a set of choices (e.g. flip chart) to give you more food for thought:”

1. Talk some more, in different ways to try and convince the other side.

2. Split the difference directly or by a formula whereby the gap is split if it is $___ or less after each makes a new confidential offer.

3. Find something else of valuable to the other side to ‘sweeten the deal’.

4. Ask some neutral person and take their gap-breaker number.

5. Take a chance on a coin flip. Whoever wins gets their last number accepted.

6. Deposit 10 intermediate values on slips in a container and someone draws out one slip that determines the settlement value.

7. Instead of paying the gap to the other party, pay it to their charity or a child or for some other mutually agreed benefit.

8. In recess, get a trusted confidant to review each side’s risks and potential gains, including getting on with your life, stop paying attorneys, reduce stress, focus better on work, regain control of your life.

9. When the gap is for contested assets, hold an instant auction.

10. When the gap is for many contested assets, one side creates two groupings; the other picks. (like dividing a remaining piece of pie).

“Is there anyone else not here who might be strongly affected by your decision or critical of it? Is there anyone who could extend your authority or freedom? Do you want to talk with them privately and explain things?”



Dudley Braun

Dudley Braun started mediating 6 years ago with community mediation panels.  This work evolved into active mediation.  He has mediated hundreds of cases with institutions such as Contra Costa County's Superior Court's mediation panel.  He combines this with his first career and his extensive training and study, driven by fascination… MORE >

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