Monday, September 7, 2009

Breaking Impasse in Mediation

7 September 2009

If a conflict were "easy" for the parties to a negotiation to solve by themselves, they wouldn't need a mediator.  Impasse is a fact of life.  Sometimes the mountain seems pretty formidable.  It's the mediator's job to help the parties find a way over or around their impasse.  Here is a list of some techniques to break impasse.  It was originally posted by Peter Bloch on a dispute resolution listserv.  I have copied the list (though not verbatim) from a site on ADR resources (HERE) run by Stephen R. Marsh.  Thank you to both Mr. Bloch and Mr. Marsh for sharing: 


  1. "Fly on the wall": When an impasse develops, ask one of the parties physically to leave their seat and stand near the wall. Then ask them to play the role of "objective observer".  Ask them to look back at the controversy as it is being played out and give both parties advice on the smart thing to do to resolve the problem.
  2. Role play: Ask the parties to exchange roles. Ask them to remember everything they can about the other person's position and to play that person's "part". Ask them to feel like the other person and to be the other person. They may ask for clarification from the real person, either at the beginning of the exercise or as it progresses.
  3. Brainstorm: Encourage parties to throw every idea on the table, regardless of how crazy it may sound, whom it favors or where it may lead.
  4. Neutral evaluation: Ask another person to comment on the value of something that is crucial to the argument.
  5. External mechanism: Ask the parties to agree on how something will be valued or how some fact will be determined.  An example could be the use of a formula or a market index, even though the actual value is not known.
  6. Exaggeration: Ask one or both sides to exaggerate both their position and their emotional attitude. Sometimes exaggeration causes a person to see their own behavior in a fresh way.
  7. Time out for meditation: Ask parties to take a break for reflection, perhaps in the room together. Do not permit anything to be said. Ask people to think silently about identifying possibilities they may not have yet seen.
  8. Fresh blood: Ask the parties to send in a fresh person who is authorized to act but has not seen all the blood letting that has occurred.
  9. Relationship building. Have the parties to an important dispute spend some time together in a relaxed, retreat-type setting. Let some of the sessions consist of mutual activities or of relaxing together with no particular agenda.
  10. Acknowledgment. Encourage each side to reflect on and acknowledge the admirable qualities of character shown by the other side. Ask them to verbalize the positive things they see.
  11. Personal narrative. Ask each side to share a story about another situation in their life that reminds them of what is happening now.
  12. BATNA and WAPTNA. Assign each side the homework of developing and putting into writing their "Best alternative to a negotiated agreement" and their "worst alternative to a negotiated agreement." This will permit the parties to see more clearly what is at stake by remembering the best and worst that may happen to them if the negotiations fail.
  13. Confrontation. Confront one or both sides about what they are doing and the likely results of continuing in that way.
  14. Setting deadlines. We must accomplish "x" in the next hour or I will assume that there is no will in this room toward settlement.
  15. Offer to forfeit a portion of your fee if the parties can settle before a set deadline. (Only helpful where the size of the fee is large in relationship to the importance of the conflict.)
  16. State interests rather than positions. What do they really want?  What are their concerns?  What are their motivations?  In what areas might they be more flexible?
  17. Imagine a better future. What might the parties be able to do in the future that would be even more valuable than past activities, if they could solve this impasse? 
  18. Change the tone. Ask people to dress differently. To sit in different locations. To sip a cold (non-alcoholic?) drink. (If they are informal ask if becoming more formal might help, and vice versa.)
  19. Switch roles. The mediator becomes a party, and one of the parties becomes the mediator for a while.
  20. Brainstorm again:  Ask the parties to throw out ideas how to break the impasse.
  21. Propose one or a few options: Here are some ideas I have had. They count for nothing unless the parties both like the ideas.
  22. Assign both parties to read the book, "Getting Past No." It has ideas that may help to break the impasse.
  23. List some things that may be at stake: money, prestige, trust, respect, etc. Ask the parties to discuss and explore which of these things seems to be most in the way of breaking the impasse.
  24. If someone shows emotion, comment on that and ask why they think the emotion is present.  The answer may reveal a cause of or a way past the impasse. 

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