Getting Past the Impasse at Mediation

You and your client have mediated for a full day. The mediator has worked hard. But there is no deal and the parties are still a ways apart. An impasse has been reached, and the prospects for breaking through look dim. What happens next?

There are a number of possibilities and skilled mediators know how to deal with what you would hope is a temporary “blip”’ in the negotiations.

First of all, your client should be prepared for this. I normally tell my clients that this is our first day of real negotiations. We would not be going if we were not prepared and interested in settling. But we are just one side. The defendant(s) may or may not have the right attitude about settlement, or may be fighting among themselves as to their respective shares.

Second, I have a basic operating principal in mediations. If the parties are talking there is hope, so KEEP TALKING if you are interested in getting the job done and a resolution of your clients’ case.

So what are the alternatives if the parties reach the end of the day or it’s apparent during the mediation day that they are stuck and the process has bogged down?

No. 1: Use a “mediator’s field of play”: Here the mediator proposes a “demand” and “offer” which each side must accept. That is, the plaintiff must agree to make the proposed “demand” and the defense (if more than one then perhaps a joint offer) agrees to the proposed offer. Once that occurs then the parties negotiate further. This approach is used when the plaintiff is holding back and making “demands” that are too high and the defense is standing on an offer that one might characterize as “way too low.” That is, each side is being unrealistic. The approach I describe forces the parties into an appropriate mediating range or “field of play” that allows them to get back to mediating.

No. 2: Adjourn and come back another day: This often happens. Perhaps there is more discussion that needs to take place between lawyer and client, or the parties need more discovery. However, if there is real interest in a settlement among all parties, a second session after some time passes and some additional work is done, often can lead to resolution.

No. 3: Separate sessions with the parties: If there are disagreements among several defendants, but overall they have a sense of what collectively might result in a settlement, perhaps a separate settlement session with the defendants will allow them to discuss their respective shares.

No. 4: The mediator works the phones: Here the mediator takes the responsibility of continuing negotiations by calling the parties separately and discussing resolution. This can work in the situation where the parties are close but closure does not occur. Maybe the defendant or defendants need to request additional authority, and cannot accomplish this during the mediation day. Or perhaps the mediator wants some time to talk to the parties separately without the time pressures of a work day. The disadvantage is that the mediator loses the face-to-face encounter, and also has the inconvenience of trying to reach counsel, who are often occupied during the business day. This becomes more of a problem when there are time differences. But continuing the mediation process is better than abandoning it. Perhaps the mediator can even bring the parties back to a face-to-face process if he runs out of nickels for the phone call!! (I remember when.)

No. 5: A mediator’s proposal: This is the last resort for a mediator to settle a case where the parties are reasonably close but are unable to make the final move to closure. Here the mediator proposes a number and the terms of a settlement. Both sides are advised of such and given the opportunity to accept or not. If the parties accept the mediator’s proposal, then the deal is done. If not, there is no settlement. In my experience, mediators are reluctant to do a mediator’s proposal unless there is a real chance the parties will accept it. These are normally very reasonable proposals which are irresistible in most cases. I cannot remember a case in which a mediator’s proposal was not accepted by the parties, but then this approach is not one that occurs with great frequency. Used properly by a mediator it can be an effective tool for resolution.

There are other approaches as a mediation is subject to the creativity of the mediator and the parties. But as long as the parties “keep talking” there is hope for a settlement. After all, as noted in previous columns, history and statistics demonstrate that the parties are likely to do better by settlement than concluding the matter by arbitration or trial.