Impasses Happen For Good Reason. Impasses in mediation happen for all sorts of reasons. Two common reasons that I see are one, that people aren’t ready to mediate (either in spirit or in fact) or that two, the parties are under the impression that justice or a win in front of a trier of fact is inevitable given the particular facts and circumstances of their case. Most attorneys I have met, litigated against and mediated for, know that justice can be elusive, even with a slam dunk set of facts. Some of us had to learn this the hard way. I admittedly have drunk the Kool Aid about a case or two in my time. I have also had things happen like confidently walking into a courtroom the morning of the last day of a two week trial where all I had to do was deliver a closing argument on a case I was certain to prevail and prevail big on, only to have the clerk say to me as I arrive, “Ms. Graceffa, you aren’t going to like this.” Then, followed by “…the Defendant filed bankruptcy this morning so don’t bother unpacking your closing exhibits.”
No One Wants To Be Scared Or Bullied Into A Result. When impasses in mediation happen, I admit that I sometimes feel the swelling urge to start telling the parties those kinds of stories so they understand that nothing is a given, no matter how good they think their case is. While my example about my thwarted closing statement may feel like a one-off, it is not. It is a fact of litigating. When litigating, I have many times been on the receiving end of a mediator turning up the jets on this fear factor tactic when it seems like everyone was stuck. I didn’t like it when it was used on me and I am not a fan of using it myself. True, litigants need to understand that relying on the concept of justice or good facts alone is not a good strategy and that even the best cases can fail. Instead of pivoting to fear as a tool when things get hard, we should be looking at what is missing in the equation to help the parties solve their own problem. Which harkens back to the first reason mediations stall, which was that the parties weren’t yet ready, or one reason or another, to get the deal done.
A Pause With a Purpose and a Timeline. For the most part, people arrive at a mediation willing to resolve the case but sometimes, they do not have the information they need in order to settle in an initial session. I understand the disappointment of not settling a matter during an initial session and at the same time, these sessions, if ended correctly, can lead to wealth of information for everyone and a settlement in the near future. Instead of spending the last hours of the session spooking the parties about their odds, it is often more productive to spend some time gathering information about what exactly each party may need to move forward towards resolution.
Often, there is key information each party is missing in order to feel ready to make a decision in their best interest. Once I understand what the parties need, I will suggest that the parties consider agreeing to get and exchange said information by a certain date and to come back by a date certain with a plan to resolve the matter. More often than not, parties learn surprising things about their cases in a mediation. They often need a little more time to metabolize what they have learned and need more information to move forward. When parties all agree to a plan of action and set a specific date to execute that plan, they more often than not, are more easily able to resolve the matter the next time we meet. A well planned second session can and often does, end in a settlement. Why take the risk and spend the money on a second session? Because working towards certainty and an end instead of working towards taking on more and more risk and expense is, well, good common sense.