Impasse and Alternative Dispute Resolution (ADR)

HOW TO OVERCOME IMPASSE?

As negotiations proceed, Parties sometimes reach an impasse often not due to overt conflict, but rather due to resistance to workable solutions or simply exhaustion of creativity. While the impasse might signal that the dispute is unresolvable in mediation, the mediator may believe that a workable agreement is still possible. Below are some techniques to get negotiations moving.

Always remember: The goal isn’t to overcome impasse per se, but to help the Parties analyze and negotiate constructively. The Parties are free to stick with a position there may be a legitimate reason for impasse, and it’s not your job to pressure the Parties into a settlement!

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

Alternative Dispute Resolution (ADR)

Alternative dispute resolution (ADR) refers to a variety of processes that help parties resolve disputes without a trial. Typical ADR processes include mediation, arbitration, neutral evaluation, and collaborative law.  These processes are generally confidential, less formal, and less stressful than traditional court proceedings.

One of the primary reasons parties may prefer ADR proceedings is that, unlike adversarial litigation, ADR procedures are often collaborative and allow the parties to understand each other’s positions. ADR also allows the parties to come up with more creative solutions that a court may not be legally allowed to impose.

Definitions of ADR Processes

• Arbitration: A neutral person called an “arbitrator” hears arguments and evidence from each side and then decides the outcome. Arbitration is less formal than a trial and the rules of evidence are often relaxed.  In binding arbitration, parties agree to accept the arbitrator’s decision as final, and there is generally no right to appeal.  In nonbinding arbitration, the parties may request a trial if they do not accept the arbitrator’s decision.
• Case Conferencing: In case conferencing, a judge or the judge’s representative meets with the parties and their attorneys to try to settle some or all of the issues in dispute before going to trial. Parties’ participation is limited, and the focus is on narrowing the issues in dispute.
• Collaborative Family Law: Collaborative Family Law gives divorcing couples a way to end their marriage respectfully, without going to court, while offering them the support, guidance and protection of their own, specially-trained lawyers. If either spouse decides to go to court, both spouses must hire new lawyers. This motivates everyone involved to continue working toward a mutually agreeable resolution. Collaborative Family Law may also involve other professionals. Collaborative Family Law may not be appropriate for couples with a history or fear of domestic violence, or where one spouse cannot locate the other.
• Mediation: a neutral person called a “mediator” helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the case, but helps the parties communicate so they can try to settle the dispute themselves.  Mediation may be particularly useful when family members, neighbors, or business partners have a dispute.  Mediation may be inappropriate if a party has a significant advantage in power or control over the other.
• Neutral Evaluation: a neutral person with subject-matter expertise hears abbreviated arguments, reviews the strengths and weaknesses of each side’s case, and offers an evaluation of likely court outcomes in an effort to promote settlement. The neutral evaluator may also provide case planning guidance and settlement assistance with the parties’ consent.
• Parenting Coordination (PC): a child-focused process in which a trained and experienced mental health or legal professional called a “parenting coordinator” assists high-conflict parents to carry out their parenting plan. With prior approval of the parties and the court, the parenting coordinator may make decisions within the scope of the court order or appointment contract. The purpose of Parent Coordination is to help parents resolve conflicts regarding their children in a timely manner and try to promote safe, healthy, and meaningful parent-child relationships.
• Summary Jury Trials (SJT): In this adversarial dispute resolution process, each side presents its case in a shortened form to a jury.  The jury then makes a decision, which is advisory only, unless parties request that it be a binding decision. A summary jury trial gives parties a preview of a potential verdict should the case go to trial.  SJTs are available in limited jurisdictions.