Overcoming Impasse: Techniques for Jumpstarting Stalled Mediation

Written by John Curtis on . Posted in Mediation

Expecting to go into mediation without coming to some sort of impasse is like going hiking and being surprised the path up the mountain is not paved. If two parties could agree on a solution, they wouldn’t need mediation; it is reasonable to expect that they encounter obstacles, hit roadblocks, and occasionally feel stuck. Temporary stalemates need not derail the entire process or make it unnecessarily difficult or painful. When hiking, you take water, walking sticks, packs, energy snacks, and maybe a Sherpa to carry you the last ¼ mile. When mediating, you depend on the mediator’s tools of the trade.

Here are some common techniques that trained mediators use to overcome impasses in the process:

Identifying the Elephant(s) in the room and talking about them.  Often the parties have simply not been able to articulate the essence of the problem.  It might be because they are too embarrassed to say it, their anger has made them inarticulate, they assume that the other person must see it as they do, etc.  Mediators strive to get to the heart of the matter in a non-threatening way.

Caucusing. While resorting to caucusing as the sole technique of mediation is not usually beneficial, it can be useful when a roadblock throws itself in the way. The roadblock could be a need for reality testing with both sides or the level of emotion in the room. Caucusing allows each party to explain the situation from their side without any fear that what they say will be used against them.

Shuttle diplomacy.  This is caucusing gone wild. Shuttle diplomacy may be necessary when parties cannot be in the same room. Ideas, messages, and thoughts are shuttled from room to room by the mediator. Again, this is often not ideal when used as the only means of mediating, but it can help break a stalemate.

Empathy. Once they are clear on their own positions/interests, ask each of the parties to  explain the situation from the perspective of the other.

Exaggeration. Here, each party is asked to exaggerate their claims and emotion. The hope is that they will realize where they are being ridiculous, or perhaps just a bit unreasonable. Personally, I don’t do this but some commentators have suggested that this can work.  Perhaps it works like comedy of the absurd, gets everyone laughing and then they come back to earth in a more realistic and sensible frame of mind.

Future visioning. Ask everyone to take a look into their crystal ball: if this were all behind you now, what would life be like? What would your typical day be like?  What would you do with all the extra time (and money)?

John Curtis

John Curtis

John Curtis is a successful lawyer with over 15 years’ experience in litigation focusing on Sport Law and Mediation Services. In addition, he is an expert in providing engaging, hands-on Conflict Resolution Training including Mediation Training, Negotiation Skills Training and Conflict Coach Training