Navigating Impasse: Beyond the Mediator's Proposal

Every mediator dreads the moment when parties declare they are at a "dead end" or "wasting time". While it is tempting to offer a Mediator's Proposal, it should be a last resort. Consider these techniques to break the impasse.

1. Shift from Positions to Interests. When parties are stuck on numbers ("I won't accept a penny less than $500k"), they are stuck in positional bargaining. Gently pivot the conversation by asking "Help me understand your business intention" This can drift the party away from their legally pleaded damages and address the core underlying interests—the actual grievances or needs.

2. Reality Test with a Forensic Mindset. This may require specialised knowledge in litigation. Instead of telling parties they are wrong, help them explore the alternative to a negotiated agreement (BATNA - Best Alternative to a Negotiated Agreement). Ask probing, respectful questions: "Tell me how the court will address (their weakness)" "Tell me at what stage is your litigation and how long would it take the case to trial?" "What is the range of potential outcomes at trial, including the costs in a winning scenario and losing scenario?" This forensic exploration, done privately in caucus, helps parties make a more objective risk-reward analysis.

3. Change the Scenery. Sometimes a physical or mental break is all that's needed. Suggest a 15-minute coffee break. When you reconvene, try brainstorming on a whiteboard, changing the seating arrangement, or focusing on a minor, solvable issue to build momentum. Breaking the psychological inertia is often the key to unlocking the impasse.