Mediation and the Impasse/Martin Rosenfeld, JD

Posted on December 29, 2018


What can a mediator do when the parties seem to have reached an impasse in their discussions? Some options may include the following:

*Remind the parties, if they have children, how a non-agreement may place a disproportionate burden on their children. Parties may be happy to attempt to pulverize each other, but how many parents want to see their children harmed?

*Have the parties consider how the alternative to an agreement (i.e. litigation) will likely be exponentially more costly, both in dollars and psychic pain, than any mediated agreement they may be able to reach. For example, the average mediation is well less than the cost of the average litigated matter.

*Suggest that if they cannot fully mediate their dispute, they agree to that which is doable and then take the unresolved matters to arbitration.

*Give the process a break and let the parties re-convene at a time they feel ready for another “rodeo”.

*If necessary, ask the parties if they will allow you as mediator to move out of your neutral stance and offer your opinion as to how they can resolve their differences.

*Remind them that nothing will be more satisfying to them, in the long run, than to know they worked with civility and sensitivity, to come to an agreement that they can both be proud to “own”.

*Ask the parties, what they would like to do if no resolution is found. “Mediate don’t litigate” is more than a convenient saying. Mediated agreements really make sense and is worth the effort that may be required. Mediation may not always work but it has a proven track record of success. Keep this in the forefront of all post-impasse discussions.