Impasse during mediation is an expectation, if one considers the number of times mediations fail to result in durable agreements between parties. Confidentiality precludes exacting answers, but the track record for reaching successful outcomes hovers around 65 – 70 percent when considering all types of mediations my research was able to track effectively, with several outliers due to mediation context. Family, multi-generational, and commercial mediations skewed toward durable agreements 85-90 percent overall, perhaps due to the level of commitment to finding solutions focused on saving close relationships, or reframing to avoid the long-term costs associated with not reaching an agreement. All other types of mediated cases were considerably lower, around a 50-50 proposition, implying lack of party commitment, an inflexible power imbalance dynamic, mediator failure in the process, or any number of other factors potentially in play.
There exists a broad continuum of potential impasse factors, from the absolutely none side to an infinite number if one considers party’s hidden agendas, subterfuge, or foul play as a part of the impasse context. For this article, we shall consider 12 possible impasse scenarios and explore possible methods for overcoming each. There shall also be an exploration of how seeming impasse creates opportunity.
An ancient Arab proverb about bargaining goes “No is the beginning of every successful bargain.” This proverb is the foundational to how impasse is perceived to be nonexistent. A true impasse would be an impenetrable barrier, which is difficult to accept in an era of “anything and everything has a price.” If the impasse is truly nonexistent, then the implication of ending would be a stalemate, especially in commercial mediation, which projects some level of failure within the process. One party (or both) was not exhibiting good faith in the mediation, using the time to explore the options with no intent towards action. This intent, usually part of a hidden agenda,is a strategic impasse, where a party is using the mediation for discovery purposes, or testing the other party’s resolve on the matter. The best way to mitigate this first type of impasse is in the hands of the mediator before beginning the process. Proper intake procedures and checklists should ensure all parties are ready to mediate with the necessary materials and data. Also, requiring the actual decision-maker to be present, acts as a barrier to a strategic impasse within the mediation.
The second type of impasse links to confirmation bias. Before a mediation, parties often seek affirmation of their developed position from peers, friends, and colleagues, giving themselves a highly inflated artificial power construct. Failing to identify an accurate positional viewpoint increases overconfidence in personal outcomes, leading to reluctance in engaging in the process of seeking solutions. Overcoming this context requires mediator’s competency in projecting an “agent of reality” image. The reality checks should happen in caucus, and developing this competency requires effective role-play and effective post-mediation peer review.
The third type of impasse occurs when an overabundance of anger or verbalized discord is present. An angry party exhibits zero-tolerance to collaboration or effective communication. An effective mediator works through this scenario by reframing away from the “all-ness” aspect of zero-tolerance. Toning down the rhetoric of always or never to a level of “frequently, some, or often,” it reduces the stress in the room. Breaking up the exchange between parties by interviewing each party in turn and questioning for clarification of artifacts related to the anger, also leads to mutual apologies and an opportunity to return to the de facto mediation.
The fourth type of impasse emerges from contempt dynamics, namely stereotyping. Stereotyping is an artificial construct where one party is labeling to create a power advantage or get a reaction to exploit. The competency needed to mitigate this context is the ability to humanize the parties equally by addressing the labeling as being immaterial to the future interests of the parties. Again, role-play is the best method for learning this dynamic process.
Fear of losing face or honor based on violation of a core belief is the fifth impasse context. Competent mediators overcome this effect by utilizing caucus and floating potential offers to each party, allowing the parties to adopt a solution without appearing to “cave in.” Once the basic agreement is on the table, simple modifications or additional points are easier to resolve.
Entitlement and expectation norms are the sixth type of impasse. Narrative approaches that explore past realities where the parties functioned on par, give the mediator a way to shrink the perception of these norms. Another valuable approach is framing how projected entitlements or expectations can cause “complimentary schismogenesis” where the other party reacts by shrinking from the negotiation. This is a highly developed mediation skill needing specific communication skills training.
Value disputes, especially where there are uneven considerations by the parties, are the seventh type of impasse scenario. One party may expect monetary compensation while the other party may expect an object lesson to be learned as well. This “value perspective” component is the apology or no apology scenario, where participants should express consideration needs at the onset of the mediation; and the mediator should discern these expectations during intake. This impasse is always present in restorative justice scenarios, and a competent mediator should exhibit the ability to empathize with both parties, while fully supporting both parties need for closure.
Sometimes, getting stuck or giving up becomes a reality. In this case, mediators should reframe why the parties agreed to mediate, offer to construct a temporary agreement on points already resolved, and postpone the mediation to give parties time to reflect. The resulting delay is not truly impasse. Some parties are very introspective, meaning they process under less stressful conditions, and they will conclude how to proceed in due time. The mediator needs to be firm in setting a date for completion to give the other party a feeling of fairness to their needs.
False impasse occurs when several contexts are present in the negotiations. The most powerful context is when the losses or the consequences due to not resolving are worse than what negotiators identify as potential options for consideration. Two other scenarios are when a party has directives to “put up a good fight” or “leave nothing on the table,” which serve to extend negotiations on minute points that otherwise would be inconsequential. A misleading, false impasse is when a party deliberately trickles out information to obfuscate the negotiation, often creating barriers at the table by omission. The best way to view false impasse is a delay in agreement or breakthrough. At times, a false impasse scenario brings negotiations to a precipice, at which point, the parties must consider difficult but necessary decisions. The personality of the participants influence the decision matrix, especially those wanting to save face.
Honest divergence occurs when the parties make a real effort to resolve the disputed issues. Mediators must understand not all mediation efforts will result in a durable agreement. In fact, agreements should not always move forward for many plausible reasons. If the parties collaborate, do their analysis of what is driving the dispute, and cannot find a common solution, it is then their choice to walk away. Based on my pool of examples, this outcome is more satisfactory than any bad agreement, and exit questionnaires reflect a high level of party satisfaction in this context.
In conclusion, impasse does exist, but it should be projected as a temporary roadblock for a competent mediator to explore. Role reversal, with the mediator or the parties reframing the other’s position, can create objective clarity over subjective positions and holds strong action potential for creative collaboration. From the best perspective, impasse and the efforts to overcome impasse create opportunity in most mediations. When the mediator starts from this opportunistic position, the entire mediation process is optimized.
Credits: Dr. Buddy Thornton