Mediation Impasse-Busting Techniques

JAMS ADR Blog by Chris Poole

There comes a time in every mediation when negotiations reach an impasse.  Negotiations can stall at the outset of a mediation when the parties are unwilling to bargain with one another either because “it is the other side’s turn,” “we won’t respond to that outrageous demand” or “we won’t accept that insulting offer.” [1] Later in the mediation, impasse may occur when either party perceives that the other side is not negotiating in good faith, which means that one side has stopped matching moves with the other and has reached the bottom line, or their “limit of authority.”

For whatever reason an impasse occurs, mediators must provide the parties with the tools necessary to break the deadlock and move discussions to the zone of agreement.  This is the point at which the parties have narrowed the playing field and can negotiate to closure.

Effective impasse-busting techniques include the following:

1. Ranges:  This is useful when the parties are far apart and not at a place where they want to make a specific offer or demand.  It involves the mediator asking each side whether they are willing to settle the case in a range of numbers—i.e., high six figures, low seven figures, etc.  If parties accept the mediator’s suggested range, the negotiations continue in that range.  The use of the range has brought the parties closer together.  One party may be willing to say that it would settle in the high six figures if the other party would be willing to settle in the low six figures.  This coupling of brackets with ranges is used when the parties are uncomfortable choosing a specific number to offer or it is too early for the parties to negotiate within a smaller range suggested above.
2.  Brackets:  This is employed when a party is reluctant to go to a number unless the other side is at a level that will produce a settlement in the midpoint of the brackets.  For example, a party may say that they are only willing to offer $1 million if the plaintiff is at $3 million.  Brackets are an effective tool to close the gap when progress in trading demands and offers has narrowed but has not reached the zone of agreement.

[1] Phrases in quotes throughout this article are heard in almost every mediation.  No offense intended if you find, as you will, that you have uttered these phrases.

                       

Bruce Friedman

Bruce A. Friedman, Esq. is an accomplished dispute resolution professional who has mediated a wide range of cases including class action matters and served as a sole arbitrator, party arbitrator, and member of arbitration panels. Mr. Friedman began his neutral career in 2011 following 37 years as a trial lawyer… MORE >