Michael W. Hawkins | Dinsmore & Shohl
An impasse is a situation in which no progress is possible, especially because of a disagreement, deadlock, or a situation where parties won’t move forward.
Mediation, on the other hand, is when parties have a conflict or dispute and hire a mediator to assist in achieving a resolution. Thus, our slogan at the ADR Center: Come with conflicts. Leave with solutions. This should always be the attitude of a great mediator and the parties. Mediation is designed to address a conflict the parties have and to avoid an impasse.
If the mediator and parties use the proper tools and process, there really is no such thing as an impasse. Here are a few of those tools and processes:
- Have a process all parties will use in approaching mediation from the initial contact with the mediator, the mediation statement, realistic client preparation, and the opening session by the mediator. Be sure to consider the interests of all participating in the mediation.
- Come to the mediation with a mindset you are there to get the dispute settled and you and your client will do everything within reason to build a solution on which all can agree.
- Have a realistic assessment of the dispute. Studies show attorneys overestimate the value of the plaintiff’s case and undervalue the risk of the defendant’s assessment. Realistically assess what will happen if the dispute does not settle at mediation. What are the best and worst alternatives if a settlement is not achieved at the mediation?
- Make sure you have the right mediator. Does your mediator have the skill to understand they are responsible for the success of the process? Is your mediator a good listener? Does your mediator have the ability to grasp the totality of circumstances, facts, law, and emotional issues? Does your mediator know what the terms of a successful agreement look like? Does your mediator have the commitment to assist the parties with resolution? As Alex Karrass, a skilled negotiator points out, a good mediator will discover a face-saving way to resolve the parties’ differences.
Try to get the idea of an impasse out of your thoughts and dialogue. Instead, focus upon the purpose of mediation: to achieve a solution suitable for everyone.