Earlene Baggett-Hayes, Professional Resolution Experts of Michigan
In 1975, singer/songwriter, Paul Simon, released his first No.1 hit song entitled “Fifty Ways to Leave Your Lover.” This song provided impetus to writing this article, especially because of some of the hints that were provided through Mr. Simon’s lyrics. The hints serve as practical tips which may be used in the mediation process.
In his song, Mr. Simon sang about, “Making a new plan.” Similarly, in mediation, the parties come together to strategize and establish a new course for going forward. Mr. Simon also sang about, “Sleeping on it…and in the morning seeing the light.” Clearly, in mediation, a resolution may not be immediate. It may require extensive discussion, deliberation and thought, sometimes extending over several sessions. Also, according to Mr. Simon’s hit song, “There is no need to be coy.” Likewise, mediation allows for full, open and honest revelations of the parties’ concerns. Finally, Mr. Simon sings about the advantage of “Getting yourself free.” It is common knowledge that a successful mediation frees the parties of exhaustive time, money and anxiety.
Clearly, Mr. Simon’s musical sound provided numerous methods for leaving a lover, or, in any event a situation that one, or both parties, wanted to escape. This article offers fifty ways in which a mediator may assist parties in moving beyond a situation in which they have reached a roadblock, referred to as Impasse. It is important to note that these impasse strategies are not tied to any particular fact situation. They are also not offered to be employed in any particular order. The methods may be used as applicable, based on their appropriateness.
1. Remind the parties they haven’t resolved everything; however, they have certainly agreed that they would like to get the matter resolved during mediation.
2. Defer the issue because the time is not ripe for discussion. Come back to tough issues later on.
3. Trust the process. Feel free to go back to the information-gathering stage, or generation options.
4. Ask the parties their specific reasons for thinking that an alternative is unacceptable, then look for narrow solutions tailored to the specific reasons provided.
5. Conduct experimentation. Ask, “What if’s…” Try to see if it works.
6. Use experts: Accountants, Real Estate Appraisers, Tax Professionals, etc.
7. Point to actual progress made thus far. Use white board, check-off lists, line-outs.
8. Provide snacks and beverages.
9. Take a break.
10. Change the seating arrangements or rooms during a joint session. This may create varying perspectives.
11. Acknowledge that an impasse has occurred and that some items are tough to resolve. Ask for ideas to move forward.
12. Review outstanding concerns/issues. Combine similar/like issues.
13. Break an issue down into smaller parts, isolating the most difficult portions and reserving them for later.
14. Talk about positions and interests, and focus on needs.
15. Review the parties’ priorities and common interests.
16. Encourage the parties to work toward a resolution as one united team.
17. Talk about fairness. Ask the partiers to explain what fairness to both parties means.
18. Remind the parties this is their opportunity to make their own decisions, rather than having someone else make it for them.
19. Encourage decision making without rushing the parties.
20. Ask additional neutral/open-ended questions about the problem, feelings, flexibility, suspected hidden agendas, potential compromises.
21. Brainstorm and ask for additional creative options that have not already been discussed.
22. Ask each party how “you” can resolve this and remind the parties to focus on the future. Encourage the parties to have their own negotiation plan or strategy. This causes them to be proactive, rather than reactive in their responses.
23. Talk about happier, or more successful, times in the relationship.
24. Tell the parties that the mediator is stuck and ask for their assistance and ideas.
25. Take a mediator break.
26. Caucus
27. In caucus, instruct the parties to switch positions; step into the shoes of the other side.
28. In caucus, conduct reality checking. Plant the seeds of doubt, while remaining neutral. Ask the party what the reasons would be, as stated by a judge or jury, if they were to lose the case.
29. In caucus, ask if there is anything a party would like to say to, or ask, the other side.
30. Use silence. Create a period of silence to allow the parties to “think about it.”
31. Stand up, walk the room, change seats, lean against the wall – neutralize the room.
32. Inquire into non-monetary ways of resolving issues.
33. Ask the parties to indicate what would change or happen if they reached a solution, or if they did not.
34. Provide ample opportunity, in joint or caucus depending on circumstances, to allow parties to vent.
35. Recognize and verbalize opportunities/hints regarding possible trade/offs, exchanges of services, opportunities to bargain, etc., that are raised, whether overtly or covertly.
36. Change the subject to a non-mediation topic, ie., weather, common interests, sports.
37. Draft an interim or partial agreement.
38. Expand the pie. Address terms not originally viewed as options.
39. Weigh in on expressed or implied opportunities for an apology.
40. If neither party wants to go first, address the potential advantages of going first (setting the stage, relaying a party’s positions, interests and needs).
41. Test for the parties’ emotional investment in a position by asking what it would take to get the parties to surrender it.
42. Indicate that it is very close to the time to end the mediation (Call their bluff).
43. Encourage the parties to agree on a high/low figure to help close the gap.
44. Refer parties to their respective attorneys for questions, confirmations, clarifications.
45. Bring attorneys in, or contact them by telephone or other means.
46. Privately meet with attorneys, or privately meet with the parties.
47. When mediating large group matters, alter the group make-up.
48. Use contingency clauses: If one party does this, then will the other party alter their position?
49. Adjourn the mediation.
50. Contact the parties after the mediation to reconvene.
Getting beyond impasse can certainly be an art. Hopefully the information above, with the help of Paul Simon, will assist in overcoming roadblocks in mediation.
—————
Earlene Baggett-Hayes is an ADR practitioner with emphasis in Mediation, Arbitration and Training. Industries include automotive, telecommunications, ecclesiastics, banking, building products, municipal, construction and education. She has mediated over 300 cases over a period of 15 years and serves on numerous national mediation and arbitration panels. Ms. Baggett-Hayes is licensed to practice law in the states of Michigan and Illinois, and is the founder of The Law and Mediation Center, PLLC, in Pontiac, Michigan.
