Movin’ on Through an Impasse at Mediation

Author: Kathryn Lee Colgan

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August 6, 2018 9:00am

We have all been there. It is the standstill during mediation where it seems there is no way a settlement is going to be reached, and you feel as though you have reached the point of no return. However, with a few simple strategies and considerations, you may be able to breach this impasse and move on with meaningful settlement discussions.

The Oversell

We all are staunch advocates of our clients and the “facts” of our case, but, at times, we fail to see the other side’s perspective and can oversell our case. Thus, before having the settlement evaluation discussion with clients, take a step back and discuss the opposition’s three most persuasive arguments or facts. Then, determine the validity or weight of the opposition’s arguments and how they size up in comparison to your most persuasive arguments.

Thereafter, do the research. A jury verdict search or blast email to your firm to determine the outcome and amount of either the settlement reached or judgment awarded in similar type cases can go a long way. After assessing arguments for both sides and having an idea of the range of settlement, then a real settlement evaluation conversation can commence with realistic expectations. If you oversell the case at the onset, you may set the expectations far too high and diminish the potential and possibility of settlement from the get go.

The Initial Offers

There is nothing worse than walking into mediation and getting a ridiculous and outrageous initial demand from your opponent. This immediately puts a damper on mediation and naturally, we attribute the worst possible motivations to said demands. This tactic however flows both ways as the defense sometimes puts forth a nominal or “low ball” initial offer.  Therefore, even in contentious cases where emotions between counsel may be running high, be thoughtful in your initial offer and always keep your eye on the ultimate goal of settling the case. If you feel warranted putting forth a very low initial offer, along with the offer, present the rationale behind the offer with the mediator so there is some explanation or context to go along with the offer.

Think Outside the Box

While it is true most of the time, it is money that will get the deal done. Do not be afraid to consider other options which could help sweeten or close the deal. In one case, even with the right amount of money on the table, it was a genuine apology which helped push pass the impasse and secured the settlement. Do not be afraid to come up with a couple alternative options before attending mediation to help necessitate or move settlement discussions along.

Take a Breather

Often when you reach what seems like the point of no return, parties will call it quits. Sometimes, especially when emotions may be running high, it is a good idea to take a break or a breather. Walk away from the mediator’s office, take a time out and re-group. At times, a cool down period can do wonders for both sides and allow the parties to come back to the table with new arguments or perspectives to move over the impasse hump. Further, if there is a particular issue both sides have been stuck on, perhaps agree to disagree on the single issue and move on to a resolvable issue. A small step is still moving forward.

Change the Negotiator

Sometimes breakdowns in mediations and negotiations are caused by personality clashes and/or an overly aggressive or much too passive mediator. By proposing a change in the mediator, a new and fresh perspective can be presented potentially changing the direction of settlement discussions.

By taking a thoughtful and meaningful approach before attending mediation and implementing some simple tactics throughout, parties may be able to move past the mediation impasse and closer to settlement.

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