Have you ever been stuck in a mediation where the parties have reached an impasse, it feels like it’s going nowhere, and a resolution seems impossible? There are a few reasons why this can happen, and understanding these reasons and knowing how to overcome them can help to break the impasse.
The great divide
An impasse can occur at any stage of settlement negotiations, even including straight after an opening statement. However, as we all know, mediations can be draining and exhausting, so it’s usually at the end of a long, difficult day that an impasse occurs. Often, it can seem quite irrational and can be about one small issue or term of the settlement that just can’t be agreed upon. This impasse can seem insurmountable when all parties are tired and fed up.
Generally, there are three types of impasse:
- The emotional impasse. This usually involves unfinished emotional business. For claimants, the dispute is most often very personal and the mediation is their day to be heard. As I’ve talked about in my previous posts if claimants do not feel that they have been listened to, respected or given the opportunity to say their piece, then the hurt, loss and suffering they have sustained will not feel resolved.
- The substantive impasse. This is a really common one and occurs when the monetary interests of the parties aren’t aligned. This can be caused by a party not knowing or understanding all the facts of the case, lack of knowledge of the relevant law or interference by a third party (such as a husband or wife) who has an opinion on what the claim is worth and is discouraging a settlement.
- The procedural impasse. This can occur when one or more of the parties feel that the mediation is not being conducted fairly or appropriately. This can happen when there is a power imbalance between the parties, when a party does not have the appropriate authority to settle or there is a general mistrust of the process.
Breaking the Impasse
Before giving up on the negotiations and calling it a day, there are a number of strategies that can be used to try and close that gap in negotiations.
- Take a break. This is the simplest and most obvious strategy, but one that’s easily forgotten. Stepping away for a while can help parties to reset, regain control over their emotions and to see things differently upon their return. A break can be as short as a few minutes, an hour over lunch or even overnight and there is no shame or perceived weakness in asking for a break. There are many reasons to take a break including if a party is becoming emotional, tired, angry, seemingly distrustful or overconfident.
- Move on. If negotiations are stalled because of a disagreement over a fact or a piece of evidence, then ask the other side to agree to temporarily set that issue aside and move on to something else – preferably an easier issue to regain confidence in the process. This break in the chain of discussion can be all that is needed to refocus, keep the momentum going and resume negotiations.
- Consider what failure to settle looks like. Suggest to the parties that they seriously consider what will happen if the matter doesn’t settle. Take your client back to what they wanted to achieve, what their risks are and help them to consider how the offer on the table compares to their best alternative if the matter doesn’t resolve. For claimants, remind them of the costs of litigation, the potential outcomes (including losing) and the value of having funds now versus potentially years down the track. For respondents, discuss the ongoing costs and, depending on the type of claim, the benefits of having a claim off their books, putting a matter behind them or repairing their reputation or business.
- Consider alternatives to money. Sometimes, a claimant needs more than just a financial offer to resolve their claim. For some, as discussed in my last post, an acknowledgement or apology can bring them closure following a traumatic incident and drawn-out proceedings. For others, offers of ongoing care, counselling or medical treatment might be enough to close the gap in settlement discussions. If negotiations have stalled, think outside the box and consider whether your client can offer an alternative to money to bridge that gap.
- Change strategy. It’s a common strategy for parties to open negotiations with an extreme offer and then make slow and incremental moves towards a reasonable settlement. Although this can sometimes work, it can also increase the frustration of the parties and cause an even greater sense of loss and anger leading to a refusal to negotiate further. If this happens, there is nothing to lose by changing strategies. Your client won’t lose face by admitting that they may have been too aggressive at the start, or that they have now taken the time to revisit their position. Showing vulnerability and admitting that a particular stance was not appropriate can actually go a long way to developing trust and encouraging negotiations to continue.
- Perspective. Lastly, if negotiations are stalled and issues can’t be agreed, try asking all parties to take some time to consider the conflict from their opponent’s position, and to come back with some suggested solutions on what that party may accept as well as one or more concessions they are prepared to make. Although this perspective-taking exercise may not always be successful if the parties are unwilling, it can often help to clarify any misconceptions about the other party’s position or needs and get the ball rolling again.
There is no sure-fire way to break an impasse, but if negotiations have halted, it’s well worth trying some of the above strategies to encourage discussions to continue. Sometimes, matters simply do not resolve for any number of reasons, but often, refocusing, changing strategy and regaining that trust can break that impasse and lead to a resolution that is acceptable to all parties.
If you would like to discuss the strategies that I often adopt when parties reach an impasse during a meditation, please contact me on 0412 048 456 or by email on jsomerville@r3resolutions.com.au.