THE DREADED IMPASSE: SOME KEYS TO AVOID IT
OR TO HANDLE IT EFFECTIVELY IF NOT AVOIDED
By: David C. Peterson, JD, LLM, MDR*
Parties and mediators are normally and naturally concerned over mediation failing. When an impasse occurs, the first thoughts are that the process has come to an end. If this were always the case, however, far fewer disputes would settle. The fact is that effective mediators working with cooperative parties are able to move past the stalemates and assist the parties in reaching agreement. This article will focus on the preparation and beginning strategies that will either avoid an impasse or, if one occurs, will render it more likely to be to be successfully dealt with. Many articles and presentations regarding impasse have focused on strategies to get beyond the stalemate. This article focuses on setting the stage and beginning strategies to avoid impasse altogether or to render it more likely to be successfully overcome if one occurs.
PERSPECTIVES ON THE PRIMARY CAUSES OF IMPASSE:
Deadlocks are common during negotiations. In fact, the manner in which we negotiate maintains the parties in a type of impasse throughout the process. Those in negotiation are nearly always hardwired to set up the negotiation so that the parties commence at odds with each other and remain so until the exchanges move into an acceptable (reasonable) range and an agreement gels.
The first demand is higher than the party expects the other to accept. The first offer is lower than the other party expects to pay or give away in order to settle. Our culture and humans in general have a need to be at peace with themselves about the final result. Part of this need is satisfied by an exercise that causes their counterpart to give in, to compromise. There is a sense of success when going through a careful process of examination and testing the waters in negotiation with the end result of the exercise being a feeling for each side that both had to work for the settlement. It is then felt that the most they could achieve was achieved and they did not just capitulate or show weakness. If you are at a flea market, an auction or an open market in another country, there is an expectation of a bargaining process. This is attractive to many because there is a challenge presented. They can get something for a bargain price through negotiation. But if one in this circumstance makes what they consider to be a “lowball” offer and it’s immediately accepted, they will have a feeling of failure and disappointment; they believe they surely could have gotten a better deal.
Messages are also exchanged between the negotiating parties, each justifying why they remain at odds with their counterpart. Agreement is not reached by one or both parties outwardly acknowledging the other is right and they are wrong or one party has the better case. It occurs when the parties see the offers and counteroffers merging so that each side believes that the terms on the table are better for themselves than their best alternative if no agreement is reached (“BATNA” [Best alternative to a negotiated agreement]).
Frequently, the negotiation is competitive in nature rather than cooperative. The difference is usually signaled by the first demand and offer. When one side or both is perceived as “off the chart” with their initial demand or offer, or both begin in unrealistic zones, a feeling of insult causes the parties to aggressively compete, showing a lack willingness to compromise.
This occurs under certain circumstances such as the following:
1. Inexperience in the negotiating process;
- Feeling of a need to send a stronger than necessary message of confidence;
- To intimidate the other party;
- Inexperience in reasonably assessing risk and potential outcomes and the potential expenses or losses to which their client is exposed;
- Failure to prepare for the mediation or negotiation, spending little or no effort in careful evaluation and development of productive opening strategies;
- Using the mediation process for purposes other than settlement and having no intention to settle;
- Allowing their emotions and those of their client to overwhelm rational thought;
- Not thinking through the consequences of making an insulting demand or offer.
- Operating under the influence of an inflated ego;
- Feeling that it is necessary to aggressively fight and do battle rather than determining first whether this will in fact be productive.
The difference between an aggressive, competitive approach and one that is more cooperative, is when one or both sides view compromising as a losing strategy.
The negotiation becomes a test of wills and frequently involves tactics of rudeness, intimidation and one-upmanship. Emotions run high. As they do, adrenalin causes the blood levels in the brain to diminish as it goes to the areas of the body that support our instinct to fight or flee. Rational thought becomes more difficult or non-existent.
These circumstances produce the greatest risk of impasse that cannot be overcome unless there is a neutral who is experienced in assisting parties in breaking this pattern and moving the parties to a more cooperative approach and also assist them in rational analysis of their BATNA, the risks involved and what is best to meet the realistic and achievable goals of the client.
Before the plug is pulled when unnecessarily competitive conduct puts the parties at impasse, the mediator must have the experience and expertise to recognize the difference between hard negotiation tactics and hopeless bad faith behavior that cannot be altered no matter the efforts made to do so. Experienced mediators have all dealt with extreme demands and offers. The two coming to mind for me are: one case where the demand was $2,000,000.00 and no offer was made in response, and another where the client was convinced she should receive $33,000,000.00 in a soft tissue case. Both cases and many more where there were extremes at the outset, settled. We are able to handle extreme or aberrant behavior so it would be a mistake to end a mediation just because parties are being difficult in the beginning.
This is different, however, than a party having no intent to settle but is using the process to obtain free discovery, gain an advantage for future negotiations or to simply intimidate the other side. When this becomes patently obvious, it’s best to end the process and not waste more time and money.
SOME EFFECTIVE WAYS
TO HEAD OFF IMPASSE:
Research and experience demonstrate that preventing impasse begins long before the potential deadlock arises. It begins with the attorneys. Informed and experienced lawyers will prepare themselves and their clients to approach the mediation process in a cooperate fashion. This does not mean in a weak or surrendering manner but simply that they will employ those strategies that will demonstrate that they wish to be cooperative with the other side in finding a solution to the common problem they face; that is, they wish to settle and will work with the mediator and other side in good faith to find a reasonable solution.
An appropriate opening statement would be, for example: “We are here in good faith and will work with you and the mediator if you will do the same.” By employing this approach, there is less likelihood of an impasse occurring so long as you are dealing with an experienced counterpart that is interested in a reasonable, good faith resolution as well. This does not mean there will be no competition. It merely sets the stage most likely to avoid tactics that will render the process more difficult than necessary.
Rather than escalating the problem by being aloof, rude, non-cooperative and using the mediation or negotiation process as another forum to do battle, the best negotiators are diplomatic in their exchanges and demonstrate a willingness to listen and seriously consider the underlying interests continuing to affect the dispute. By doing so, they have the best chance of having the other side on board with doing the same.
The attorney should work with his or her client to prepare them to come to the mediation or negotiation with the intent of approaching the process in this cooperative fashion. Again, this does not mean weakness or a willingness to settle on unreasonable terms. The cooperative approach is, in essence, a willingness shown to form a type of partnership with the mediator and the other side with the goal of working diligently to find a solution that settles the case. All of the experts in the field of negotiation and mediation who have written or taught on the subject agree that this cooperate approach is far more effective to reach a successful result.
What the parties are doing is exploring the underlying interests of each side, discovering the real and sometimes hidden factors that are motivating the resolve of each to be at continuing points of disagreement as the mediation progresses. By uncovering these, the target to aim at becomes clearer.
As this occurs, each side is then able to work on satisfying those underlying interests, as best as they are able. For example, in a wrongful death case, the underlying interests are not necessarily the money (although usually important as well) but the recognition of loss. This is why such things as offering to erect a public monument or establish a scholarship in the name of the deceased, will facilitate agreement. In medical malpractice and other matters where a more personal relationship existed, studies have shown that the injured party felt neglected and abandoned, driving them to a resolve to get their pound of flesh. A carefully formulated apology and recognition of the suffering of the plaintiff will many times help to facilitate settlement. Apologies and other goodwill gestures can go a long way toward improving the environment and attitudes of the parties. The importance of this is neglected or misunderstood by many.
Expanding the pie will help avoid impasse. In other words, coming up with ideas to render a settlement more beneficial to the other side is extremely helpful. Examples abound in this respect especially if there will be an ongoing relationship after the settlement. Adjustments in prices and terms in the future or in the case of payment of money from a private party, allowing an affordable payment plan (with readily available enforcement protections in place) can bridge that final gap needed to settle.
There are a myriad of ways to increase or pie and it’s best to explore these with one’s client in advance of the mediation rather than have to struggle to think of them in an environment where time and other pressures will interfere with creative thought. Even so, the attorneys and clients should also be ready to explore and entertain additional creative ideas that will likely emerge as the parties work together to formulate terms of settlement.
The main point being made is that preparation prior to the mediation provides an edge and advantage in averting or being able to overcome an impasse. Planning and preparing in advance for the most productive approach and thinking of creative ways to satisfy interests that seem apparent at that time, will provide the best chance for resolution at mediation. The very best lawyers I’ve worked with, including some of the most successful trial attorneys, do what is recommended above nearly always and have much better success by doing so. End
*Mr. Peterson is a local mediator, holding a Master’s and LLM degree in Alternative Dispute resolution obtained at Pepperdine School of Law, the Straus Institute for Dispute Resolution (a program consistently rated #1 in the Country by US News & World Report). Mr. Peterson regularly mediates through the Santa Barbara Superior Court CADRe and San Luis Obispo Court Programs and also works independently through his firms, Professional Dispute Resolution and Central Coast Mediation, in Santa Barbara, Ventura, San Luis Obispo, Kern and Fresno Counties. For comments or further information, Mr. Peterson can be reached at: (805) 772-2198, (805) 441-5884(cell) or firstname.lastname@example.org