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Mediation Impasse: Failure or Opportunity?

June 26, 2012

Personally, I always think I have failed as a mediator in any mediation where any party even mentions that an impasse seems likely.  How did I allow such a suggestion to even be considered?

I know I have no interest in the outcome of the mediation, and certainly no control.  However, deep down, I really want the parties to find that common ground necessary for their voluntary resolution.  I also know the parties would always prefer a voluntary resolution without trial if only I can help them find it.  And, whether the first mediation or the third, I want that resolution during the mediation I am serving!

On occasion, however, I have found that resolution was not possible that day.  But, although a matter reached a technical impasse, i.e. the parties simply unable to agree,  I always believed that the “unwanted” ending, that day, did not necessarily imply that resolution was thereafter not possible.

Accordingly, many times, when I made my usual call, post-mediation, to follow-up a “failed” mediation to see if resolution efforts could still be made, I found that the mere passage of some small amount of time had apparently worked to allow the parties to resume resolution efforts.  And,  for some, literally the next day!

And with the number of “failed” mediations that almost always settle after any mediation “impasse”, but without the need of trial (usually, with the good start from their mediation efforts), it is clear to me that sometimes parties simply “run out of steam” at some mediations.  And when they do, resolution, that day, is simply impossible.

(You should probably know that I rarely “accept” that an impasse is necessary.  To me, the term impasse implies that no resolution is possible.  In reality, any case can find resolution before trial and most do, in or after mediation, as long as the parties keep trying.   Accordingly, I find even the term can become self-fulfilling by impliedly removing even any effort for future resolution.)

It therefore has seemed clear to me that sometimes, in some circumstances, when the parties were struggling,  a simple “time-out” was the best move for the parties (if not the mediator).  And, personally, I have not hesitated in even suggesting an adjournment on some appropriate occasions.

Until recently, however, I do not think I really thought about why I took such a step to rest the parties (or myself).  Or, why it sometimes led to a resolution shortly thereafter.

A recent article, “The Joy of Impasse “, by Robert Benjamin, a long-time attorney-mediator and author, really struck a chord with me.  And, particularly with regard to just these circumstances and these questions I had not raised in my own mind, much less answered.

In his article, published by the Professional Mediation Institute, in Volume XII, May 2012,  Mr. Benjamin suggested that mediators should consider some impasse as not a failure but an opportunity!

And, perhaps mediators should be more willing  to even suggest an impasse (more likely an adjournment?)  under the proper circumstances.

Among other proper circumstances, are those occasions in which it may be obvious that fatigue and the stress of a prolonged mediation are trending the parties away from resolution instead of toward one.   Or, where it appears parties are unable to “see the forest for the trees”.

He refers to such an “opportunity” as “the crack that lets the light in” .  He also suggests to approach that point as a “constructive and useful junction in the problem solving process” of mediation.

Ironically, I just recently experienced that exact “useful” phenomena in another complex mediation.  I just did not know, again, the “why”.  But, after the fact, this interesting article shed some important light upon the issue for me.  And, it’s teaching point will be quite helpful to me in the future.

With the multiple parties working very hard and for long hours late into the evening and on a Friday night, it gradually became apparent to me that our production (theirs and mine) was diminishing and might even be turning backwards.  Although unpopular with the parties, at the time, I suggested adjournment (both had also begun using the impasse word) to allow some rest and reflection upon the significant progress that had been accomplished with the day’s effort.  Both sides agreed; even though both sides thought the matter was finished.  I, however, really thought resolution was just around the corner.  However, I had also simply run out of ideas to close the remaining gap I felt was reachable.

Everyone went home, grumbling.

However, as I hoped, upon my followup the next day, to their own surprise (and even a bit to me), the parties began to find grounds for resolution.  And, they completed their complex settlement agreement early the next week, working through me with only a few phone calls and timely emails.  And, on some grounds previously soundly rejected!

I am now quite convinced that only common fatigue blocked the parties finding resolution, not any lack of their reasoning nor their obvious committed efforts.  And, it certainly helped for me to have a chance to collect my thoughts and refocus my suggestions.

But, what really surprised me, once again, was the relative ease with which final decisions were made after a night of rest that during the heat of our formal mediation seemed impossible to obtain.

As I read Mr. Benjamin’s article, I began to reflect upon how many times something similar had happened to me in other circumstances; simply allowing the parties to rest and reconsider old offers and rejections and progress made and opportunities still to be achieved.

Those successes after mere rest seem to be the basis of  his observation and article:  that everyone’s rational thinking (including any mediator) has limits imposed by simple fatigue.

How intriguing!  You mean fatigue can cause mental block and worse, bad judgment?  How novel.  I bet your mother (and for sure, your father) told you that a million times in totally different circumstances.

And yet, because the answer is simple, I frankly had not considered it as an answer to my previous “whys”.

And, particularly, as the article points out, because mediators spend their lives anticipating impasse, learning about how to prevent it and thinking of novel ways to try to get around it.   We are not trained to use impasse, but instead, try to cure it.  Entire books and seminars for mediators are devoted to how to first avoid and/or, then, if necessary cure impasse.  I have never attended one or read about (until now) how to potentially use an impasse to find resolution.

Actually Mr. Benjamin’s intriguing article is also much deeper in the science of the “why“.  Including how the brain works (and doesn’t work).

In essence, the brain needs to use both its left side and  right side separate  functions, and then periodic relaxation of the competing functions, to achieve the total insight of decision-making.  But, on occasion, conflict between the two sides attempting to make a decision simply  reach a point at which relaxation is not possible due to simple overload or fatigue.  And therefore, the necessary insight is lost.  At least for the moment.

It is at this point, where an “enforced” respite for the relaxation of the brain, then simply allows the brain the insight that was thus blocked prior to emerge to allow resolution to be found.  Simple, huh?

“Enforced” relaxation can come with planning or mediator direction.  Or, it can come simply because you have to quit for fatigue, alone.

As Mr. Benjamin’s article points out, haven’t some of your best thoughts come early in the morning or even in the shower when you were the most relaxed?  It is at this relaxed stage that your brain “solves” so many problems.  Some known and some possibly stored unconsciously until a decision is reached.

Thus, when impasse seems inevitable in any mediation, maybe it is really just an opportunity for you, not a defeat.  Maybe you (and your mediator) just need a “time-out” to find the decision you really need for your resolution.

I highly recommend that both mediators and attorneys and other mediation participants who frequently mediate read Mr. Benjamin’s article.  My synopsis does not do his article full justice.

However, good mediators will add this insight and Mr. Benjamin’s suggestions to their tools they use to help mediation participants find a resolution.  Informed mediation participants can now consider that “taking a break”  or a simple adjournment may be just what the doctor ordered to find the resolution that escaped everyone’s very best efforts at mediation.

The next time you reach an impasse while believing everyone really tried, you might want to consider such a respite as an opportunity, not a failure.  And, then you can accept why you can still keep trying, post-mediation, through your mediator or directly, to find your resolution.

One Comment leave one →
  1. chloemtait permalink
    August 3, 2012 11:33 am

    Great article. Please check out this new blog on how the mediation process could be used to bridge differences in public policy: http://www.mediationandpolicymatters.com

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