The Closer

A Mediation Newsletter August 2012

Getting Past the Impasse
by James Rainwater

It happens to all of us. Sometimes the parties simply will not agree to a settlement during the conference. As mediators, we push and pull, cavort and cajole, and discuss and distill; yet, there are times when the dialogue ends in impasse. Emotions may be heightened, and tempers may have been depleted. At times, such a scenario may actually benefit from a non-settlement during the conference.

An impasse may give the parties a chance to cool off and regain some perspective on the issues. To belabor the conference, hoping to foist some sort of agreement onto the parties or wear down their opposition, could further harden their positions and render any settlement as unachievable. The beauty of mediation is the enduring prospect of conciliation, and sometimes that prospect needs additional time and space.

When an impasse does occur, the mediator should confer with each side and explain that the settlement process is not necessarily concluded. The conference may end, but the discussion should continue. This is the juncture where a proactive attorney can be assertive with the client and not surrender to a permanent impasse.

The mediator should also assign "homework" to each side - items to give consideration and continued thought. These items may include the last offers made by each side. If the mediator maintained a firm grasp of the issues and tenor of the conference, other possible settlement terms and scenarios can be suggested to the parties.

Mediators do not like impasse and will go to great lengths to avoid it. A technique to be employed in such a situation is simply for the mediator to maintain a connection to the case. This may involve follow-up phone calls, email, etc. Attorneys should take advantage of this extra effort and capitalize on the time and effort already spent at mediation. Impasse can be the death knell for a possible settlement, but it is not necessarily the end of mediation. Continued diligence is the key to getting past it and securing a resolution.

Rainwater Law