Overcoming Impasse in Mediation: A Short Literature Review

At each national ADR conference, mediators flock to the programs on overcoming impasse in mediation. The conference planners never schedule these sessions in big enough rooms. So, practitioners find themselves sitting shoulder-to-shoulder on the too few available chairs, standing along three walls of the room shifting from foot-to-foot during the hour and a half session, or uncomfortably sitting cross-legged on the floor right under the speakers’ noses. Any experienced mediator understands why these sessions are popular. Too often our mediations reach a moment of impasse. Often, we try to overcome impasse by shifting from a less directive (to use Riskin’s new Grid terminology) to a more directive, more evaluative style. But we have other options.

This article will provide practitioners a list of additional resources they may wish to read on overcoming impasse. But first I want to consider why impasse may occur. I recently finished observing student role-play mediations in my Certified Civil Mediation class. Without exception, student mediators got bogged down principally by four missteps in the process. First, they did not tease out the underlying interests and needs of the parties. Instead, they allowed the discussion to focus on positions. So at the first sign of impasse, circle back. Did the mediator move too quickly through the interest identification stage? If the mediator suspects this misstep, he or she should begin asking “why” again to discover those interests and needs that he or she may have overlooked the first time.

Second, mediators have avoided a deeper level of intervention, especially at the emotional or “heart” level, that parties may need to resolve the dispute. I have written about this topic in two prior articles, so I will not spend more time on it here, except to say that unacknowledged emotions often lead to impasse.

Third, the mediator may need to reframe the dispute. Zena Zumeta, at the last ACR conference, suggested a reframing technique that adheres to the following rules. In framing the dispute, the mediator should tackle (1) one issue at a time, (2) framed neutrally so no one feels blamed, (3) with mutuality so both or all parties feel it is an issue they want or need to resolve, (4) using a short statement involving as few words as possible, (5) which is oriented to the future, and (6) oriented to how the parties will resolve the issue. Zumeta also suggests that the mediator frame an issue that the parties want to resolve (not the one the mediator thinks they should resolve). She also suggests that the mediator frame the issue without trying to solve it. This technique works extremely well, but requires practice and a willingness to get it wrong. The master of the technique, John Haynes, illustrates reframing as a process of “successive approximation” in his video series available from the Association of Family & Conciliation Courts at www.afccnet.org or by calling (608) 664-3750. The video series “ain’t” cheap, however. The audio tapes (a set of two) of Zumeta’s workshop are more affordable and available through www.conventionrecording.com or at (727) 345-8288. Ask for Session PC3.03: “Framing Issues in Mediation: An Advanced Workshop” presented at the ACR Annual Conference on October 15-18, 2003 in Orlando, Florida.

Fourth, mediators may have truncated the creative processes that generate options to resolve each carefully framed issue. Again, they may need to circle back to generate more ideas. A short article written by Jennifer Brown that appears in a symposium law review issue on negotiation provides citations to several articles and books designed to help us all think more creatively. See “Creativity and Problem-Solving,” 87 Marquette L. Rev. 697 (2004).

So the parties are stuck. What else can a mediator do? Under the heading of changing the game, several experienced mediators suggest that you take a break, add parties (a co-mediator, another party or representative, or attorneys), change the communication rules, change seats, take another break, conduct role-reversals, and facilitate reality testing. Other suggestions include the following:

• “Go to the balcony.”
• More deeply examine the parties’ BATNAs, WATNAs and MLANTAs (most likely alternative to a negotiated agreement).
• Meet with the attorneys or parties separately.
• Agree to use an expert to resolve the legal or factual dispute causing impasse.
• Search for more objective criteria that may provide parameters for principled bargaining.
• Ask the parties (typically in caucus) how they think they reached impasse.
• Ask the parties (typically in caucus) for ideas about how to get past the impasse.
• Switch to an evaluative role with permission of the parties (in other words, change to early neutral evaluation).
• Provide a mediator’s proposal, again with permission of the parties.

See Creo, Segal, Johnson & Lawrence, Session D14: “Breaking Impasse; Techniques Mediators Use to Avoid or Break an Impasse,” presented at the Sixth Annual Conference of the ABA Section on Dispute Resolution on April 16, 2004. Copies of the session handout may be available by contacting Gina Brown at dispute@abanet.org.

Two authors have outlined the steps in several types of mediator’s proposals. See Peter Contuzzi, “Practitioner’s Notebook: Should Parties Tell Mediators their Bottom Line?,” Disp. Resol. Mag., Spring 2000, at 30; Robert A. Creo, “Emerging from No Man’s Land to Establish a Bargaining Model,” 19 Alts. to High Cost of Litig. 191 (Sept. 2001) (Westlaw document 19 ALTHCL 191); Robert Creo, “How a ‘Blind-Trust Method’ Resolves Multi-Defendant Cases,” 17 Alts. to High Cost of Litig. 145 (Sept. 1999) (Westlaw document 17 ALTHCL 145). I keep a copy of these articles in the notebook I take to every mediation I conduct. Creo also describes another technique helpful in the multi-party context in “A Pie Chart Tool to Resolve Multiparty, Multi-Issue Conflicts,” 18 Alts. To High Cost of Litig. 89 (May 2000) (Westlaw document 18 ALTHCL 89).

Mediators can also use with success during the reality testing effort a decision-tree analysis. Decision-trees help parties better understand the risk of impasse and the likely probability of each party’s BATNA. An excellent short summary of this technique appears at Jeffrey M. Senger, “Decision Analysis in Negotiation,” 87 Marquette L. Rev. 723 (2004). The hard copy of the article will show the graphics you will need to understand the technique. The on-line version of the article may not reproduce these graphics.

Mediators may also find these website resources helpful:

• ADR.com provides a list-serve where mediators can seek the insight of other mediators about particular impasse situations.
• The award winning Air Force ADR Program also provides guidance on getting past impasse relying primarily on reality testing and careful evaluation of BATNAs and WATNAs. See “Pressing Past Impasse” in the Air Force Mediation Compendium available at www.adr.af.mil/compendium .
• Steve Stanczak’s “Workplace Mediation and its Emphasis During Impasse” appears at www.nperla.org . He also provides a helpful bibliography. Stanczak is the Risk Manager for the City of Kenosha, Wisconsin and targets his advice to people providing mediation services within their own organizations.
• Fred M. Weiner’s “Labors of Love: Strategies for Success” appears at www.calperla.org . Weiner is Whittier, California’s chief negotiator. The site provides case studies and real-life illustrations of recommended techniques.

The literature on impasse in mediation grows each year as more mediators join our ranks and as we do more mediations. If you have a technique that has worked for you, I would like to hear about it.

                       

Paula Young

Paula M. Young is an associate professor at the Appalachian School of Law located in Virginia teaching negotiation, certified civil mediation, arbitration, and dispute resolution system design.  She received in 2003 a LL.M. in Dispute Resolution from the top ranked program in the U.S.   She has over 1400 hours of… MORE >