Impasse, a predicament offering no obvious escape, is imbedded in the vocabulary of mediation and understood by many as the death of hope. But who believes that every controversy can be settled in an afternoon? In fact, mediations are often the first time that everyone actually understands the problem and the obstacles to resolving it.
Mediation is widely viewed as a one-off, a do or die sprint. The case settles at mediation or it doesn’t and, if it doesn’t, mediation is said to have failed, to have ended in an impasse. Is there a more efficient and economical way to deal with a claim that cannot be settled at an initial mediation than to declare an impasse and return it to the court’s docket?
The obstacles to settlement cannot always be overcome in three hours. All too often, the parties wind up frustrated because critical information is missing. There is also the matter of emotions, which animate the way people behave and which take time to change. People frequently react to all of this by throwing in the towel and reverting to fighting. They fail to create a plan for dealing with the issues that kept them from a settlement then and there.
Mediations end in impasse for a reason (or reasons.) Consider making a list of the issues that have been resolved and another list of the issues that have eluded resolution. The second list is often surprisingly short and can form the framework for gathering the additional information necessary to push the negotiations forward. Then make a written commitment to meet again after a reasonable period of time and have another go at it.