Mediation is the art of facilitating negotiation. Often disputes occur between parties who are inexperienced as negotiators; and, if left to their own devices, will tend toward impasse. Although professional negotiators often apply the tools of mediation on their own to facilitate agreement, they, too, occasionally need the services of a mediator. Impasse–also referred to as stalemate, deadlock, or getting stuck–occurs for a variety of reasons, but primarily it occurs when the parties are unwilling or unable to identify options and make concessions to each other. This article will review nine precursors of impasse and offer advice to mediators on how to deal with each.
Inflated perceptions of power. In developing their positions, parties often consult exclusively with their friends and supporters. Rarely do they give serious and objective consideration to the viewpoints of the other. Often this selectivity can result in over-confident perceptions of power and reluctance to make concessions.
To sidestep this problem, the mediator has two options. In caucus, the mediator could request that the “inflated” party provide evidence supporting his/her power position. The mediator, serving as an “agent of reality,” could present the party with a realistic assessment of the power in the situation. The mediator could also indicate (with permission) that the other party cannot offer more and such persistence could destroy the mediation driving both parties to the unsatisfactory status quo.
Anger and verbal hostility. Occasionally, the expression of upset goes well beyond normal venting. This behavior is often highlighted through the use of “allness” language such as “always,” “never,” and “all.” It consists of constant blaming, swapping of insults, and pressing of each other’s hot buttons. In such cases, there are several options. The mediator could reframe allness statements using such multi-valued terms as “often,” “frequently,” and “some.” Another option would be to halt the verbal exchange while the mediator interviews one party in front of the other about any prior goodwill that existed between them. The other party is asked to comment. The second party is then interviewed giving the earlier party an opportunity to comment. This is followed by a discussion about the parties’ preferred mode of interacting. Following this discussion, the mediator invites mutual apologies and asks the parties to continue.
Stereotyping. This situation occurs when one party (or both) constantly makes derogatory statements about the other (e.g., salesman, feminist, liberal). When stereotyping occurs, two options are available. The mediator could hold the stereotype (e.g., feminist) up for inspection by asking, What is a feminist? What are the needs and interests of a feminist? This could redirect the interaction to a needs/interest level which will serve to open the dialogue. Additionally, the mediator might side-step the stereotyping talk by disassociating the parties from the dispute indicating that both are decent persons who are being negatively impacted by the dispute. After all, an important mediator function is to humanize the parties.
Fear of face loss. Occasionally a party declines to make concessions as he/she does not want to be perceived as weak, to be changing his/her mind, or to cave in to the other’s demands.
To keep a party from losing face, the mediator (with permission) could articulate the party’s offer. Also, in caucus, the mediator could provide the party with a rationale for shifting a position. Such shifting is basic to negotiation, i.e., a change in position demonstrates flexibility and good faith. Mediators have also been known to float an agreement that is likely to be accepted by both parties. Rather than risk the loss of face, the parties need only adopt or modify the floated agreement.
Entitlement. Entitlement occurs when a party expects to have his/her way based on high status, race, looks, gender, wealth, physical size, etc. Although unsound, such justifications are occasionally adopted by untrained negotiators.
Suspecting entitlement, the mediator might consider a diversion tactic that would have the “entitled” party recall and adopt an aspect of his/her identity that is more favorable to settlement. For instance, a husband who rigidly holds “I am in charge of my family,” could be encouraged to recall the story about himself as a “once-considerate mate.” Should this fail, the mediator (in caucus) should explain that such claims of entitlement can cause the other party to retreat forcing both to return to the unfavorable status quo.
Pushing a personal value. A value is a core belief that is vital to one’s concept of self and is often vigorously defended. Occasionally a party will enter mediation not to settle the dispute, but to “teach the other a lesson.” The “teacher” is often unconcerned with the costs or the ramifications of the outcome. This author recalls one small claims mediation where an adult agreed to pay $35 as her share of the court costs to secure a $20 settlement from a teen. She felt he needed to learn that he could not ignore a financial obligation no matter how small.
Value disputes are difficult to mediate, but there are some considerations. With permission, the mediator could indicate that the other party has learned the lesson (meet obligations, show respect, etc) and wishes to negotiate a fair settlement. The mediator should try to work around the value by probing shared needs and interests whose volume might overwhelm the value argument.
Getting stuck. There are occasions where parties have reached agreement on almost all issues but one, which is holding up an agreement.
There are numerous alternatives when parties get stuck. The mediator might review the progress made by the parties and ask if this single issue is worth destruction of the progress. This could point to a compromise on the final issue. The mediator might ask for an interim agreement including a statement to revisit the issue at a later date. Should these fail, the mediator could temporarily postpone the process and relegate the deadlocked issue to a third-party decision maker–an appraiser or an arbitrator. If the issue is relatively minor, the mediator might turn to a linear decision device such as drawing straws, flipping a coin, or splitting-the-difference.
Giving up. On occasion both parties may view themselves as too far apart, become frustrated, and give up. They can’t envision a settlement, are unconvinced that mediation works, and are about to walk away.
Here, the mediator has two picks. The parties could be asked to review their original reasons for entering mediation (e.g., to resolve the dispute; to avoid the unpleasant status quo). Perhaps the vision would be rekindled. Also, the mediator might ask the parties to complete an “impasse checklist” (see attachment) in which they identify causes of the impasse itself. After comparing responses, the mediator reveals the parties’ similar and different perceptions. The mediator could initiate a discussion about the impasse resulting in clarified perceptions; hopefully, the reorientation will motivate the parties to continue negotiating. On one occasion both parties checked the item, “could not generate options” which led to a creative discussion of options.
Honest divergence. On occasion each party will have conducted a “balanced analysis” of the dispute but generated different interpretations of the facts or responsibility.
Looming impasse, based on honest divergence, presents a keen challenge for the mediator. The mediator might get the parties to extend their discussion by reframing the dispute, i.e., introducing ideas that the parties had overlooked. One method is role-reversal where each party is asked to state the other’s point of view to the other’s satisfaction. This exercise helps the parties to stand back from their positions, recognize their lack of objectivity, and think more creatively.
This article isolated nine conditions likely to lead to impasse. The mediator should be aware of them and have sidestepping tactics at the ready. Many of the tactics suggested here ring of basic mediation training. Indeed they should as impasse prevention is a key mediation function. However, if a solid effort to resolve impasse episodes results in no agreement, the mediator should be content with his/her peacemaking effort. Mediation is not for everyone or for every dispute. Some persons have authoritarian personalities and prefer persons in authority to settle their disputes for them. It is the mediator’s responsibility is to manage the negotiation process, not to save a relationship or fix a poorly conceived business deal.
___ Plaintiff ___ Defendant
Please check the reasons for the impasse.
___ One party quit due to hurt feelings
___ One party consistently called the other derogatory names
___ One party rebelled at the intimidation attempts of the other
___ One party tried to use high status, wealth, race, etc.
___ One party held rigidly to a value
___ One party was unconvinced that mediation would work
___ One party seemed overly convinced he/she was right
___ We could not agree on the facts
___ We could not resolve a key issue
___ We could not generate options
___ We could not agree on each other’s responsibility