Kimberly Sands, a partner with Upchurch Watson White & Max, has been a civil litigator and has been involved with difficult and complex disputes as litigator or mediator for over 30 years. To schedule a mediation with Kimberly, please call her case manager, Cathy McCleary, at (800) 863-1462, or visit our online calendar.
I recently had the pleasure of speaking at the Florida Justice Association’s 2017 Workhorse Seminar. It’s something I’ve done many times over the years, even before I began my mediation practice 16 years ago. This year the topic was “Getting Into and Out of Impasse,” specifically “the steps you can and should take to eliminate or minimize failed mediations and impasses.”
As a mediator, I don’t judge my success or failure on whether a dispute settles or impasses at mediation; decision-making is beyond the role of the mediator. Some disputes impasse for good reasons. Some disputes go on to settle based on the strategy developed in mediation, often with the mediator’s continued involvement. However, I do consider it my responsibility to avoid impasse by exploring every avenue and opportunity for settlement with the parties. This means having the time and cooperation of the participants to explore the obstacles and opportunities for settlement. It’s in these circumstances that the effort, creativity, and perseverance of the mediator are most important.
With this in mind, there are five common scenarios in which impasses occur. In no particular order, they are discussed below.
First, occasionally the parties will approach mediation having previously tried to settle a dispute by direct negotiations or prior mediation. Incredibly, parties often do not agree on the terms previously discussed. Not surprisingly, a plaintiff may recall a higher number, while the defense recalls something less. If it’s been mediated, the previous mediator may have discussed observations or suggested possible outcomes that are recalled differently by the parties or attributed to the parties rather than a mediator. It’s a common phenomenon. People sometimes hear what they want to hear or remember those details important to them. Without objective documentation, there may be no consensus on remedies previously discussed. Success in these cases may depend upon the mediator’s ability to untangle expectations and find value not previously considered by the parties.
Second, negotiations may be impeded by difficult personalities. This is not an insurmountable obstacle, but the single most important factor in overcoming this impediment may be the time the parties are willing to devote to addressing the obstacles created by clashing or simply difficult personalities. In this scenario, the use of a mediator may be essential, and the patience and resources of the mediator in identifying and addressing the concerns of such a participant, particularly a decision-maker, are critical. There is nothing more disheartening than a difficult participant and a time limit imposed by poor strategy or lack of planning for such a possibility.
Third, the parties may simply have sufficiently disparate evaluations with respect to the dispute that common ground is not possible. The best way to avoid this outcome is through (1) preparation, (2) an effective presentation, and (3) a flexible strategy in negotiation. Absent exceptional circumstances, plaintiff’s counsel may serve the client best by ensuring that the defense receives a demand, including documentation that supports the demand, sufficiently in advance of mediation that the defense can fairly evaluate possible outcomes. An effective presentation, which includes something visual, personal, and/or demonstrative that takes particular advantage of the perspective and in-person appearance of a decision-maker, also may be a game changer. If the defense is properly prepared but has a different evaluation or values factors other than those relied upon by the plaintiff, an impasse may be inevitable, but in my experience this outcome is rare. Instead, the mediator explores divergent interests to find common ground not recognized by the parties. Given the differences in the prosecution and defense of a claim, defense counsel may not be obligated to “prepare” opposing counsel in the same manner, but preparation and presentation remain important. Defense counsel should prepare the defendant for decision-making as well as present the defense’s case in a manner that may be meaningful to the plaintiff. Mediation should not impasse for lack of forethought.
Fourth, if any party lacks an attending decision-maker with full authority to settle a claim, the benefits of mediation may suffer. Again, this is not an insurmountable obstacle with motivated parties. An involved decision-maker may be available for consultation or the mediation conference can be adjourned to continue negotiations after consultation with decision-makers. However, momentum can be lost if the mediation conference concludes without a result or a plan for further discussion consistent with the importance of time, expense, or access to a decision-maker. Also, if any of the other common scenarios described herein are also present, gaining or maintaining ground may be more difficult.
The Florida and Local Federals’ Rules of Civil Procedure provide a mechanism for in-person participation by participants with full authority to settle a dispute. It may be helpful to consider a pre-mediation agreement consistent with this Rule if it does not otherwise apply. With or without attendance, the best way “to get to” a decision-maker is through the pre-mediation preparation process described above. This should include pre-mediation conversations between counsel in which the participants, their needs, and capacities are identified.
Finally, there is the “intentional impasse.” I call it the “Art of the Walk.” Never do it unless you have a Better Alternative To a Negotiated Agreement, a BATNA. This necessitates an evaluation of time vs. benefit, expense vs. benefit, consequences to the client vs. benefit, and consent of the client to the time, expense, and risk involved in the alternatives implicitly embraced by the Walk. Although there is a common assumption that an offer made will remain an option in the future, an offer can be withdrawn for the same reasons it may change for the better. Absent capitulation, a change in a material fact, a change in the offer or other circumstances that change a party’s assessment of the BATNA, this is a decision that can be final, at least until the next court decision.