Vance W.

Hinds
Basic Mediation Course
UT Arlington
December 1, 2010

COMPARING STRATEGIES TO AVOID AN IMPASSE IN MEDIATION

The purpose of this paper is to compare and contrast different strategies to avoid

impasses in mediation. I have found several different strategies from people or agencies with

different backgrounds to be compared. These strategies come from litigators, governmental

industries, and mediation training groups. In this paper, I will outline each person or agency’s

strategy, analyze the similarities and differences, and discuss their implications in my practice.

Table of Authorities and Footnotes

1. Strategies for Managing Impasse, Harold Webne-Behrman, Office of Quality

Improvement & Office of Human Resource Development, University of
Wisconsin Madison,
http://www.ohrd.wisc.edu/onlinetraining/resolution/step7.htm,
(Educator/University).

2. How to Overcome Impasse, by The Department of Veterans Affairs (VA)-

Alternate Dispute Resolution (ADR) and Mediation Website, as recited by
Mediate.com, http://www.mediate.com/articles/va2.cfm#bio, (Government
Agency/Trainer).

3. To Avoid an Impasse, Keep Talking, from PON Staff, the Program on Negotiation
at Harvard Law School, http://www.pon.harvard.edu/daily/business-
negotiations/to-avoid-an-impasse-keep-talking/ (Harvard Law School).

4. Techniques for Breaking an Impasse, Cloke, Kenneth, (1990). Mediation:

Revenge and the Magic of Forgiveness. Center for Dispute Resolution, Santa
Monica, CA, http://www.three-peaks.net/annette/Impasse.htm (Mediation
Center)

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 5. Preventing Deadlock, Stalemate and Impasse in Mediation, V. Michelle
Obradovic, Esq., former litigator and trial attorney and is Mediation Counsel to
Upchurch Watson White & Max and owner of Wise Resolution, LLC. Her general
mediation practice also includes complex litigation, mass torts and class actions.
She is an Associate Adjunct Professor at Cumberland School of Law at Samford
University, http://www.wiseresolution.com/articles/PreventionDeadlock.pdf
(Litigator/Mediator)

Outlining the Impasse Strategies for Each Mediation Proponent

The first reference material was from Harold Webne-Behrman, he seems to be in the

Office of Quality Improvement & Office of Human Resource Development for the University of

Wisconsin at Madison. The paper is entitled: Strategies for Managing Impasse. It is found in

the online training resources for the University. Their strategies for managing impasse are as

follows:

“1. When stuck, talk about how it feels… set aside "the issue" for the
moment.

2. Reframe the issue: Shift from substantive issues to procedural or

psychological concerns. This may generate new energy to revisit the
substantive issue, or put it into proper perspective.

3. Break the problem into more manageable elements. Start with a "bite-
able bite" that is also a shared concern… It probably feels overwhelming
in its current form… build a sense of confidence.

4. When in doubt: RESTATE…RESTATE…RESTATE! Be sure the other person

knows you are making reasonable efforts to understand his or her point
of view. By doing so, you greatly increased the likelihood that the other
person will sense the integrity of your efforts, and respond positively.

5. Stay flexible - generate new options. Affirm the value of continuing to

explore better responses when people feel trapped by their thinking.

6. Validate and affirm areas of agreement… these are frequently

overlooked, as we have focused only on areas of disagreement!

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 7. Clarify criteria: On what basis are we evaluating the various options
before us? Can we agree on criteria that are "mutually acceptable" to all
parties, even if not fully shared by all?

8. Reaffirm the ground rules. Again, these are frequently overlooked at

times of impasse, to our collective detriment.

9. Take a structured break...or CAUCUS (as appropriate). Be sure people go

to the break with "homework" to do.

10. Explore alternatives: BATNA, WATNA, MLATNA. This allows for an

important reality check before determining not to negotiate further.”
(Footnote No. 1.)

The second reference material, How to Overcome Impasse is written by The

Department of Veterans Affairs (VA)-Alternate Dispute Resolution (ADR) and Mediation

Website. I found the document on Mediate.com’s website. It appears to be used by

Mediate.com as a training tool for its mediators. Furthermore, it would be used in disputes

involving Veterans Affairs. This resource states the following:

“1. Take a break. Often, things have a way of looking different when you
return.

2. Ask the Parties if they agree to set the issue aside temporarily and go on
to something else - preferably an easier issue.

3. Ask the Parties to explain their perspectives on why they appear to be at

an impasse. Sometimes, the Parties need to feel and focus consciously on
their deadlock.

4. Ask the Parties, "what would you like to do next?" and pause expectantly.
Or, say "frankly, it looks like we're really stuck on this issue. What do you
think we should do?" These questions help the Parties actively share the
burden of the impasse.

5. Ask each Party to describe his/her fears (but don't appear condescending
and don't make them defensive).

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 6. Try a global summary of both Parties' sides and what they've said so far,
"telescoping" the case so that the Parties can see the part they're stuck
on in overall context. Sometimes, the impasse issue will then seem less
important.

7. Restate all the areas they have agreed to so far, praise them for their
work and accomplishments, and validate that they've come a long way.
Then, ask something like: "do you want to let all that get away from
you?"

8. Ask the Parties to focus on the ideal future; for example, ask each:
"where would you like to be [concerning the matter in impasse] a year
from now?" Follow the answers with questions about how they might get
there.

9. Suggest a trial period or plan; e.g., "sometimes, folks will agree to try an
approach for six months and then meet again to discuss how it's
working."

10. Help the Parties define what they need by developing criteria for an
acceptable outcome. Say: "before we focus on the outcome itself, would
you like to try to define the qualities that any good outcome should
have? "

11. Be a catalyst. Offer a "what if" that is only marginally realistic or even a
little wild, just to see if the Parties' reactions gets them unstuck.

12. Offer a model. Say: "sometimes, we see Parties to this kind of dispute
agree to something like the following . . . ."

13. Try role-reversal. Say: "if you were [the other Party], why do you think
your proposal wouldn't be workable?" or "if you were [the other Party],
why would you accept your proposal?"

14. Another role-reversal technique is to ask each Party to briefly assume

the other's role and then react to the impasse issue. You also can ask
each Party to be a "devil’s advocate" and argue against their own
position.

15. Ask the Parties if they would like to try an exercise to ensure they
understand each other's position before mediation ends. Ask Party A to
state his/her position and why, ask Party B to repeat what B heard, and
then ask A if B's repetition is accurate. Repeat for B. Listen and look for
opportunities to clarify.

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 16. Ask: "what would you be willing to offer if [the other Party] agreed to
accept your proposal?"

17. Use reality-checking. For example, "what do you think will happen if this
goes to court?" Draw out the emotional, financial, and other costs of
litigation and delay.

18. If all else fails, suggest (or threaten) ending the mediation. Parties who
have invested in the mediation often won't want it to fail, and may
suddenly come unstuck. This approach is useful where one Party may be
hanging on because he/she enjoys the attention the process provides, or
enjoys the other Party's discomfort.” (Footnote No. 2)

The third reference was from Harvard Law School’s Program of Negotiation (PON) and

was entitled, To Avoid an Impasse, Keep Talking. I looked around the PON website for as many

references as I could find involving impasse. With this only exception, the rest of the

information on this website seems to be geared toward training classes, seminars, literature,

etc. to purchase. This strategy came out of the negotiations from the Writers Guild of America

(WGA) West and East’s strike against the Alliance of Motion Picture and Television Producers

(AMPTP). The resource gave the following advice for impasse:

1. A looming deadline. A deadline, whether real or self-imposed, can offer

disputing parties a real incentive to break through impasse. Both sides in
the WGA strike were motivated to come to agreement before the end of
the spring television season and before the February 24 Academy Awards
show, which the writers were expected to picket.

2. A useful precedent. In mid-January, as the WGA strike dragged on, the

AMPTP reached a tentative agreement with the Directors Guild of
America for a new three-year contract. The directors’ new gains in DVD
and Internet residuals offered a template for the WGA and spurred the
writers to negotiate even better terms for themselves.

3. Improved communication. Lack of communication and a public war of

words deepened tensions and distrust between the WGA and the
producers. Negotiations finally got serious after company executives

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 reached out to the WGA. Under cover of a media blackout, the two sides
met in small groups and got to know each other. The talks “started off
cautious but gradually warmed up and became very productive,” WGA
lawyer Alan Wertheimer told Variety. (Footnote No. 3).

The fourth reference material came from Techniques for Breaking an Impasse written

by Kenneth Cloke in the Mediation: Revenge and the Magic of Forgiveness. Kenneth Cloke is

the Director of the Center for Dispute Resolution and a mediator, arbitrator, attorney, coach,

consultant, and trainer, specializing in communication, negotiation, and resolving complex

multi-party conflicts, including community, grievance and workplace disputes, organizational

and school conflicts, sexual harassment and discrimination, public policy disputes, and

designing preventative conflict resolution systems. He is author of Mediation: Revenge and the

Magic of Forgiveness; Mediating Dangerously: The Frontiers of Conflict Resolution; The

Crossroads of Conflict: A Journey into the Heart of Dispute Resolution; and Conflict Revolution:

Mediating Evil, War, Injustice, and Terrorism. I found this specific outline on a website called

three-peaks as referenced by Annette Nay, Ph.D. in Clinical Psychology. This reference states as

follows:

1. Break the issue down into smaller parts, isolating the most difficult
issues and reserving these for later.

2 Ask the parties why an alternative is unacceptable, the look for narrow
solutions tailored to the reasons given.

3. Go to other issues, to take a break and ask the parties to think about the
various alternatives presented.

4. Review the parties' priorities and common interests.

5. Suggest consulting and expert to supply needed facts or advice.

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 6. Caucus with each party separately to explore hidden agendas and
willingness to compromise.

7. Split the difference.

8. Try to obtain agreement on what the parties originally expect the

solution would be.

9. Look for possible tradeoffs or change services.

10. Encourage the parties to recognize and acknowledge each other's points
of view.

11. Tell the parties you are stuck and ask for their help.

12. Ask the parties to indicate what would change or happen if they reached
a solution.

13. Make certain the parties prefer mediation, as opposed to letting the
conflict continue, or litigation. If they don't find out why.

14. Look at the impact of various solutions on an involved third party.

15. Test for emotional investment in a given item by asking what it would
take to get the parties to surrender it.

16. Compliment the parties on reaching earlier points of agreement and

being willing to compromise, encourage them to reach a complete
agreement and put this dispute behind them.

17. Remind the parties what will happier if they do not settle. State what
each stands to lose.

18. Create a minute of silence for the parties to think.

19. Ask more questions about the problem, about feelings, priorities,
alternative solutions, flexibility, hidden agendas, reluctance to
compromise, anger at one another, etc., or return to agenda setting.

20. Serve food or nonalcoholic drinks to get them to relax.

21. End the session and assign homework for the parties to return to the next
session with written alternatives or reasons or financial data, etc.

22. Generate options by asking the parties to brainstorm without considering

the practicality of the suggestion.

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 23. Tell the parties which alternative you believe is fair and why. This should
only be done if all other options fail.

24. Suggest binding arbitration by a third unbiased party as a last-ditch

alternative.

25. Suggest that the parties increase their fighting, as a paradox to show the
uselessness of the conflict. (Footnote No. 4)

The Last reference that I found was from V. Michelle Obradovic, Esq., and was entitled,

Preventing Deadlock, Stalemate and Impasse in Mediation. She is a former litigator and trial

attorney and is Mediation Counsel to Upchurch Watson White & Max and owner of Wise

Resolution, LLC. She is an Associate Adjunct Professor at Cumberland School of Law at Samford

University. Her reference states the following:

1. Reframe the gap in different language.

2. Explore the assumptions underlying the way each party has defined the
gap.

3. Retool existing relationships to create value if possible.

4. Break down the gap into smaller issues and attempt to narrow the gap.

5. Take a bird’s eye view of what the outline of a global resolution

might look like, leaving off the discussion of details for the moment.

6. Orchestrate blind moves.

7. Orchestrate conditional moves.

8. Straw model.

9. Handicapping

10. Bring attorneys together.

11. Bring decision-makers together

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 12. Look for the counterintuitive approach

13. A settlement with High/Low provision.

14. Split the difference.

15. Adjourn and reconvene at a later date.

16. Partial settlement and consider reconvening non-settling parties at a later

date.

17. If asked, and there is no other option, create a mediator’s proposal.

18. Suggest the parties change mediators. (Footnote No. 5).

Comparison of the Strategies in Preventing Impasse

Each of the five outlines present excellent options of avoiding an impasse. There are

many similarities in each reference. Several of the outlines emphasized flexibility in the

mediator to be able to change as the mediation and negotiation changes. Also most of the

outlines pushed the mediator to question the parties about their beliefs, expectations, possible

alternatives, where the mediation should go next, and how should we get to that point. A

mediator must be flexible and confident enough to let the participants lead the negotiation to

settlement. All of the outlines gave example questions to ask the participants as the mediation

goes along, with questions such as, “What would you like to do next?”; or “before we focus on

the outcome itself, would you like to define the qualities that any good outcome should have?”;

and “what would change or happen if they reached a solution?”. Most of the outlines

discussed the importance of breaking the issue down into small manageable components and

addressing each one individually. You should start with the easiest to agree to issues first and

work toward the most difficult. Most of the outlines asked the participants to role play or put

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themselves into the other parties’ perspective position. Think of the conflict in the other’s

shoes. Also, most of the outlines discussed the importance of making the participants

comfortable, feeding the participants, giving them time for breaks and moments of reflection.

Also, talking, pointing the agreements and restating the issues should be done continuously to

keep an impasse from occurring.

Comparison of the Differences in Preventing Impasse

There were many more similarities than differences in the five reference materials, but

some differences still jumped out. Particularly with the PON at Harvard Law School, they seem

to emphasize timelines, open communication between parties but with blackout restrictions to

the media, and prior precedent of the parties. These suggestions seem more specific to this

type of conflict resolution and not a general outline for all mediations. The former litigator, V.

Michelle Obradovic gave some legal specific alternatives to conflict resolution. For example Ms.

Obradovic mentions a settlement with a high/low provision. This strategy limits the extreme

results from a jury trial. The parties would set high and low limits, meaning that if a jury awards

more than the high limit, then all the Defendant has to pay is the high limit. Conversely, if the

jury awards less than the low limit, then the party would receive at least the low amount.

Anything jury award between the two limits is awarded. This type of agreement limits the

recovery amounts but still results in a jury trial. Many of Ms. Obradovic’s suggestions involve

legal outcomes and not necessarily mediation techniques. Also, she mentioned offering to have

the case mediated by another mediator. I probably will not follow this one piece of advice. In

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Kenneth Cloke’s book, he suggests that the parties increase their fighting. I do not believe this

would be an effective technique, but I may be wrong.

Implication of the Outlines on My Practice

Each of the five reference materials gave me valuable insight to use in my mediation

practice. I particularly like the specific questions listed in the outlines as possible questions to

use in my mediations. Flexibility and confidence in the process must govern the mediation. I

must allow the participants to lead us where we want to end up without interjecting my bias

and beliefs. I must trust the process to reach an amicable conclusion. I will try and use portions

of all of the materials.

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