Mediators have so many advantages on our side. First, the mediation process is reliably promising. Most mediated cases result in a resolution. Second, mediators who trust the process won’t give up easily. Finally, mediator standards of conduct foster self-determination of the parties. Nevertheless, there are still times when the parties are so entrenched in their respective positions, it’s hard to envision a pathway to agreement. After over 25 years in this field, I will admit there are occasions, if the parties haven’t said it first, I’ve had a fleeting thought, “This will never resolve.” Even in those tough cases, like any seasoned mediator, I will rely on a few simple strategies to break impasse, without giving advice or giving up. These simple strategies empower the parties to co-create an elegant resolution.
Mediators Don’t Give Advice
First and foremost, while jurisdictions vary in the way they regulate – or don’t regulate – mediators, the Model Standards of Conduct for Mediators are almost universally recognized as the basic ethical guidelines for mediators. They were last co-authored and adopted by three of the largest alternative dispute resolution bodies: Association for Conflict Resolution, American Arbitration Association and the American Bar Association.
The first standard, and arguably the heart of those model guidelines, is self-determination of the parties.
How does self-determination work if the parties come to the mediator hoping for a resolution to their conflict? Think Star Trek. In that US-based science fiction television series, the space crew followed a Prime Directive, which “...prohibits the Starfleet personnel and spacecraft from interfering in the normal development of any society…”
Mediators carry a similar responsibility: to avoid meddling in the parties’ development of an agreement.
It’s a delicate dance we mediators do. Mediators serve a purpose: we facilitate conversations, offer our observations, try to see the problems from each party’s respective viewpoint and we listen attentively. We may even ask open-ended questions that can change the way they view the conflict or interact with one another.
Many unseasoned or untrained mediators inadvertently want to “help” the parties by providing unsolicited advice or pressuring the parties to adopt a resolution crafted by the mediator. With more practice, seasoned mediators offer compassionate detachment, to demonstrate faith in the parties’ ability to reach agreement.
To understand this fundamental “prime directive” of mediation, let’s take a closer look at the first two subsections of the self-determination standard of conduct I mentioned, with italics added for emphasis:
STANDARD I. SELF-DETERMINATION
A. A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.
B. A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.
In other words, even when it seems like the parties are at an impasse, no matter how tempted a mediator may be to offer a solution, all good mediators refrain from giving such advice. Not only does advice from the mediator take away from the parties’ self-determination, but it can also backfire on the mediator later, if the parties can’t uphold the resolution.
Here’s one little anecdote from my own experience. When I first started my position as director of the Arizona Attorney General’s mediation program years ago, I discovered many of our volunteer mediators found themselves pressuring parties into resolutions, worried they’d change their minds later. We had to retrain some of those well-meaning mediators to understand that if the parties are inclined to change their minds before signing an agreement, the agreement probably wasn’t solid, yet. Nor did it really belong to the parties. The best remedy for indecision is more time engaging in the mediation process, to build something the parties can live with and uphold.
Amazingly, once the mediators gave the parties more time and flexibility to work through their differences, our program’s agreement rates rose from 87% (which is already remarkable) to 92%! More importantly, once we encouraged mediators to ease off, the post-mediation client surveys reflected a stunning 99% satisfaction rate.
Instead of pressuring the parties to reach a swift agreement, a mediator needs to stay with the parties through their difficult conversations and decisions until they reach a resolution they feel is fair, wise and doable. Most importantly, the agreement is completely the parties’ “voluntary, uncoerced decision,” and not the mediator’s.
Mediator’s Don’t Give Up
Even the most patient mediator will find clients who are so entrenched in their respective positions or they struggle to move forward, we wonder why they remain in the mediation session. And yet they are still in it, which is one of many reasons why the mediator does not give up.
Those times when one party threatens to leave or throws out a “see you in court” statement, it is quite often a veiled, albeit jarring, threat. The reality is, no one really wants to remain in conflict, and most yearn for peace and harmony. Many times the conflict itself is just an illusion and the mediator can help the parties shift their focus from the path that led them to where they are to a future path, one they can craft together through the mediation. And in most cases, the parties have voluntarily opted for mediation, because they know it’s better than their alternatives.
In our Master Mediator advanced training sessions, we often do deep dives into impasse strategies. In a recent discussion, there was unanimous agreement that mediators owe it to the parties to persevere, even when hurtful and unhelpful comments are lobbed across the table.
As Law Professor Donald Cripe asserts:
“One overarching duty of the mediator is the mediator’s commitment to be the last person to leave the mediation. If the mediator gives up he is breaching his duty to provide the services for which he was engaged.”
A mediator remains grounded in our duty to serve clients by:
Building credibility throughout the mediation process
Gaining a thorough understanding of the parties’ relationships
Exploring all facts and their various facets, from each party’s unique perspective
Helping parties discover their underlying interests versus stated positions
Fostering a positive emotional climate that is conducive to conciliation and agreement
Provoking creativity that inspires problem-solving
Remaining compassionate, patient, resilient, tenacious and committed
Maintaining faith in the clients’ capacity to co-create their future
Faith in humanity is augmented by mediators’ confidence in the process. It’s hard not to trust it, with math on our side: on average 80% of mediated cases end in agreement.
Strategies for Breaking Impasse
What happens when mediators begin to wonder if this case falls into the 20% that can’t reach resolution? Our coaches remind mediators in our live simulations that impasse is not inevitable and, in fact, it is rare. In our Master Mediator program, we frequently discuss a variety of techniques mediators can try when the parties just aren’t progressing in a positive direction toward resolution. These strategies are inspired by an article by mediator Lou Chang. As I mentioned to Lou, I have continued to borrow and piggyback on many of his recommendations in our advanced workshops.
Here are a few ways mediators can break impasse – without giving advice or giving up:
Adopt an expand–the-pie approach
Often in a conflict, parties are stuck because they try to negotiate from a “fixed pie” mindset. One example negotiators often used involves a quarrel between two people over an orange. Instead of considering their underlying interests with the orange, whereby one wants to bake a cake with it and the other wants to drink the juice, parties are both fixated on win-lose “it’s mine” solutions. Parties also may resort to a compromise, splitting-the-orange solution, potentially leaving half of what each one is seeking on the table. Neither of these is an optimal win-win solution. Assuming limited resources need to be divided will limit options.
A mediator can model an expand-the-pie approach by adopting a more inquisitive learner, versus judger, mindset to foster courage to consider new options. “Judgment kills brave spaces,” suggests Professor Brené Brown. Instead, Brown suggests, “Deep listening, curiosity and empathy are the foundation of brave spaces.”
Instead of accepting that their only options are compromise or win-lose, the mediator can help the parties unveil new, more expansive, ideas by asking open-ended questions such as:
What does fairness mean to you?
What could an apology do?
How much is at stake for each of you?
What would make her proposal work for you?
If now is not a good time, when could you pay him?
This list of questions is by no means exhaustive. Not even close. In fact, Law Professor John Barkai, has published a book of over 3000 “gambits” or phrases for breaking impasse.
Here are a few more examples Chang for expanding-the-pie:
Invent options. When the mediator sets a tone of openness and creativity, the parties may discover new solutions they didn’t realize were possible. For example, a new restaurant owner complained the chemical smells from the print shop next door were bad for business, and the print shop owner dug in that he’s been there for decades and no one complained before. As the mediator listens and restates each party’s concerns, their interests become clearer. The restaurant, located on the corner of the block, is struggling with marketing. The print shop owner says, “If you need menus printed, I’m happy to comp them for you if you agree to move your entrance to that other door, around the corner. I’ll even send my employees over to help you move your sidewalk furniture. That way, your customers can’t smell our chemicals.” In exchange, the restaurant owner agreed to offer the print shop employees and clients an exclusive discount.
Reframe options of unequal value. I’ve often mediated cases where one party was demanding an apology and the other party came to the table clutching their pocketbook, not realizing the actual solution won’t cost them a penny.
Consider “legacy” options. One party may refuse to pay the other directly, and yet they’d consider donating to a cause important to the other party.
Try creative packaging. The parties don’t hold the same values regarding what is at stake. As a result, solutions get overlooked. Sometimes these may be repackaged in creative ways that mutually benefit all parties, for example:
Someone may be willing to pay more money if a payment plan or more time is considered by the other party.
Divorcing parents may agree that both of them may attend extra-curricular activities together, regardless of “parenting time” limitations.
The parties may reach a limited-scope agreement in mediation and then work out the remaining issues through other processes, such as workplace grievance procedures or family therapy.
Brainstorming is an option frequently discussed in our Master Mediator discussions and mediation simulations, as it is typically quick, motivating and yields creative options the parties hadn’t considered.
Shift to future-focused discussions
Of all impasse-busting strategies Chang recommends, this one is my favorite and has been central to my practice for years.
People in conflict want to review how they got here. Any good mediator will acknowledge and validate the experiences and feelings expressed by each party. Mediators recognize they serve a purpose.
But, as I mentioned earlier, the parties came to mediation for a reason. They count on the mediator to move them out of the past and into a more promising and productive future.
Here are some of the “futurizing” strategies from Chang that mediators can use:
Offer a magic wand, one of IMA’s favorites, as Jayne Waithitu discussed in this article.
Redirect and shift the focus, also discussed here.
Shifting from “how we got here” to statements and questions that illuminate a pathway forward, encouraging them to focus on the future.
I like to remind the parties that mediation is the opportunity for them to co-create a better future. Sometimes telling the parties that could mean a future where their lives are no longer entwined or interdependent. That realization may be jarring, but it also provides some relief, which can motivate them to negotiate a resolution.
Apply objective criteria
Potential resolutions may be bolstered by outside objective standards. The mediator can ask parties to identify and agree upon criteria to guide them.
Outside sources can provide guidance on what is considered “fair” within certain industries, jurisdictions or other groups within which the parties operate. Some examples of objective criteria include:
Standards from credible sources, such as professional associations, industry guidelines, published reports, performance standards, codes of conduct, written policies, applicable laws or other published benchmarks.
Expert advice, from sources such as respected leaders, trusted authorities, technical experts, lawyers, mental health professionals, financial advisors, insurance agents, real estate brokers, scientists or scholars. A panel of experts may also be convened.
Use assessments
Assessments can also be useful in helping parties move forward in their negotiations.
The mediator’s role is to help the parties assess their decisions (or lack thereof) and to consider the impact of impasse on their respective lives outside the mediation. To preserve impartiality and trustworthiness, mediators invite parties to make their own evaluations.
Here are a few of examples of assessments mediators could use:
The mediator can help hold an imaginary “mirror of reality” up to the parties, to help them review the pros and cons of options they have discussed. As Chang suggests, the mediator can do this by simply reflecting what they have heard each party say and ask the parties for clarification.
Reality-testing can help the parties assess their ideas. I like to draw a fictitious “window of reality” square in the air and ask the parties to list what options are within that square and what are beyond its scope. I’ve never had a party skip a beat, they know what is realistic and doable. One of my favorite reality-testing questions is, “Walk me through that scenario.” Also “What if…” questions, if handled well, can help the parties make realistic decisions.
Analyze the BATNA/WATNA/MLATNA ranges of possibility:
BATNA stands for “best alternative to a negotiated agreement,” or the ideal outcome if no agreement is reached in the mediation.
WATNA is the worst possible outcome of a stalemate.
MLANTA is the most likely result if they cannot reach an agreement.
Visuals, such as a chart or decision-making matrix, can be very useful for comparing options. I use this frequently in mediation. For example, I mediated a case involving a tech company, where engineers felt pressured by the CEO’s “unrealistic” expectation of a two-year deadline for a new product roll-out. When the engineers argued five years may be doable, I asked them to walk us through a flowchart on a whiteboard. When the CEO saw the supply chain stumbling block, he announced he had access to a new source for one of the materials in question. With this new information, the engineers collectively sighed in relief, realizing the CEO’s deadline was now within reach.
External tools such as the Implicit Bias Test, the Survey of Character Strengths or the Thomas-Kilmann Conflict Mode Instrument can be enlightening, if administered appropriately and willingly. I will only use instruments if the idea to do so emerges from the parties. They may not only learn more about themselves, but the right assessment may help them collectively appreciate their unique perspectives and approaches.
A secret poll may be appropriate in large, multi-party disputes. I’ve found this can actually relieve tension, with surprising results, if all parties agree to participate.
Change-up the Process
The parties often see the mediator as an authority on appropriate processes. Since mediators have a wide range of process tools at their disposal, injecting new ones may motivate the parties to change course in a positive direction.
Examples of process changes that may break impasse:
Introduce a caucus, discussed here. Giving each party an opportunity to meet privately with the mediator not only can provide them a sense of relief, but they can say out loud what they’re otherwise reluctant to say. They can bounce ideas off the mediator or share a hidden concern. At IMA we advise mediators to use caucusing with caution, to preserve faith in the process and the mediator.
Start with the low-hanging fruit, or build on agreements that are within reach or partial agreements already made.
“Sunshining” a problem can be useful. When the mediator notices patterns of communication or behavior that get in the way of the parties’ own progress, a mediator can gently point it out or seek clarification. In a recent mediation I said, “Marilee, I notice you roll your eyes whenever Marco explains why he doesn’t include you in conversations with your supervisor. In response, Marco, you cross your arms and look down.” Both parties nodded in agreement, to which I replied, “How is that working for you?” It actually made them laugh and realize their toxic communication process was central to their conflict, and gave them something the could fix, before they got into the heart of their negotiations. Sometimes, the mediator is the first person to state out loud the proverbial elephant in the room.
Role-swapping, as discussed here, may bridge understanding and build empathy.
Piloting temporary resolutions between mediation sessions can help the parties experience the benefits and pitfalls of potential resolutions.
Finding a new mediator may be what’s needed to break the impasse. Sometimes, the mediator and the parties are just not working well together. It is not a reflection on any of them, and any good mediator will recognize this. I have been known to refer cases to colleagues when I can see the parties are motivated to keep working at it, but I have exhausted all resources in my toolbox. Not only does my colleague thank me, but the parties do as well, which can be validating.
Create a more conducive environment for resolution
There are many actions mediators may take to inspire agreement and resolution. From the outset, the pre-mediation intake and mediator’s opening statement should inform and welcome the parties to the mediation process. If the mediation is in-person, mediators may arrange the room to create a sense of balance and ownership for the parties. Refreshments, hydration and room temperature should be considered. For virtual mediations, at a minimum, mediators ensure parties have equal access to tech assistance, audio and visual equipment, security and privacy.
If the standard steps are not enough to foster a resolution, the mediator can make changes to the environment to adapt to ways the parties best operate. For example:
Rearrange the chairs, have the parties physically swap seats, move to a new space, bring in refreshments or otherwise change the physical space.
Do the unexpected. I have found the tenor of a mediation can shift if I do something such as inject humor, play a game, shift the focus to an inanimate object or introduce a brainteaser with a creative problem-solving objective.
Tell a story or parable. Occasionally, it may work to share or something very personal about myself that may bring the parties closer together. For example, I’ve been in many mediations where the parties feel they have “misbehaved” so badly, they feel there’s no home for them. I will reveal my own embarrassing story about how I literally threw my opponent’s proposal back at him, and yet we managed to reach a resolution.
Elicit and reinforce ground rules. I’m not a huge fan of ground rules, however, sometimes the parties feel more at ease with some baseline agreements on rules of engagement, boundaries and norms for the mediation sessions. In fact, in my opening statement, I say, “I just ask that you each treat one another with respect. I also recognize that we each have different definitions of ‘respect’ and expectations of how we wish to be treated, so if at any time you feel disrespected, let’s take a time-out and negotiate what needs to happen to foster more respect between you.”
When All Else Fails, All is Not Lost
For that small percentage of mediated cases that do not result in agreement, the mediator can reframe even small victories as wins for the parties. In the remaining time, the mediator should compassionately acknowledge the time and effort of the parties. I always like to use hand gestures, showing how far apart they were and how much they moved, even if they are not in full agreement. I review their interests, reinforcing those they share in common, even if they seem divided. Sometimes, this last-minute summary can be the surprising and pivotal moment that seals the deal, or at least illuminates a pathway forward.
For example in a recent mediation, in the final minutes, I did my best to summarize, “You both agree you are unable to work together. How you will communicate with one another remains awkward and unresolved for you.” At that point, one party interjected, “I believe we can both agree to be professional and at the same time minimize our interactions.” The other party agreed and, even though it was not the collegial end they may have envisioned, at least they parted with agreement on how they would go their separate ways. Post-mediation, I received positive feedback from each party that this was sufficient for them to feel a sense of safety and harmony. They both know the invitation to return to mediation is there, if they desire.
Mediators should always be open to learning and growing from feedback. I always follow-up with either the parties or the organization’s internal contact who hired me, such as a director or human resources. If there was no agreement, sometimes this is an opportunity to either learn what may have prevented the parties from reaching agreement.
Occasionally, I will learn there was nothing any mediator could do. For example, in workplace mediations, one party may not be attending in good faith and already had an exit strategy in place before the mediation. Or some just want their day in court. Some people fear they would disappoint coworkers, family members or a broader community if they reached agreement in a confidential mediation setting. Sometimes, the climate outside the mediation setting has been so toxic, hostile, dehumanizing or hateful, mediation may not be the appropriate setting. I am a firm believer our justice system serves an important role, and there is a reason mediation falls under the umbrella of “alternative dispute resolution.”
As long as the mediator adheres to those guiding principles of self-determination and being the last one in the room, all is not lost. Mediators don’t use the term “failure.” In over two decades as a mediator, I have yet to have parties tell me the mediation process was a complete waste of time. Agreement or impasse, at the end of a mediation, they are more enlightened about the possibilities in front of them.
If the mediator applies these strategies, they have given their best effort at breaking impasse – without giving advice or giving up. Do you have additional strategies mediators can use? If so, please add them in the comments section below!
