A successful mediation requires preparation and an understanding of the process so as to avoid impasse, the breakdown of the process.  It is important to understand why impasse occurs and how to move beyond impasse to achieve a successful settlement.

The consequences of impasse in mediation can be significant and severe. If a case does not settle, the result of any one trial is anecdotal information. There is, however, a study of more than 9,000 settlement decisions that found that 61 percent of the time plaintiffs recovered less than the last pre-trial offer and 24 percent of the time defendants paid more. Plaintiffs’ errors cost on average $43,100 and defendants’ $1,140,000. Errors increased in contingent fee cases and where insurance was not available, factors consistent with the established finding that parties take greater risks when they have something to lose.

Impasse arises from a failure of communications, poor negotiating skills, lack of information, emotional investment in a principle, disagreement over likely results, lack of authority, or a need for an authoritative ruling. The latter need results in impasse. The other impediments are overcome by facilitating communications, the exchange of information and focus on the parties’ positions and needs. Outcome disagreements are reduced by exploring the best and worst outcomes. Emotional responses are acknowledged and thereby overcome. Lack of authority requires bringing the right person to the table. There are also ways of proceeding with mediation that can both prevent and overcome impasses.

 

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