During a recent consultation, one of the spouses asked if I had any experience dealing with impasse, and if so, what were my strategies for getting cases past the deadlock to a place of settlement. That is a pretty big and telling question, at least the second part of it. My first thought was “well, of course I have faced couples that have disagreed with one another.” I can rarely make it through a day where that is not the case. The bigger question is that second part: “Why should we trust that you can help us navigate our differences and get to a place of agreement?” That truly is the question at the root of whether a case can be resolved out of court or whether a Judge will need to be brought in to make the decisions. In this week’s blog we explore this question of will mediation work, some strategies used to get past impasse, and an encouragement to keep asking us these insightful and challenging questions.
Will Mediation work? I have worked with a wide variety of couples, immersed in varied degrees of conflict with assorted levels of disagreement. Every once in a while I will get lucky and the couple will quickly agree on all the issues and I will set right to work on writing it all up. Much more often my work is to help couples move from a place of disagreement, to a place where they can agree. I remember the instructor at my very first mediation training teaching us that we should never use the word “impasse.” The reasoning was that the word “impasse” makes the dispute sound so unsurmountable. The same can be said for the words “deadlock” or “stalemate”. Using the words “disagreement” or “differences” references the same disputed issue but reframes it so it doesn’t feel so ominous. We will move deeper into some of these strategies, but suffice it to say that we must deal with sorting out disagreements in the mediation setting nearly every bit as much as we do in the litigation setting.
Making the Judge decide is the easy way out. Mediation is no easy task. How easy it is to just go to the Judge and make them decide what to do when there is disagreement. One of the great things about mediation is the ability for the couple to hold onto the power of making the important decisions that will impact what their lives look like in the wake of the divorce. It makes the most sense to have the people impacted by the decisions and the most knowledgeable about the situation making the choices. What a great concept and of course we should have the couple sort these things out, but again, what do we do when we get stuck and we don’t have the Judge to step in and save us from our stuck-ness?
Mediation strategies to avoid impasse. So, how did I answer that client’s interview question about how I help couples navigate through their challenges? To be honest I don’t remember exactly what I said at the time. I have since had a little more time to think about how to best answer. There are a number of ways to try to get through the tough parts. Here are a few of them…
Reframing. The example I used above about word selection, differing between using “impasse” versus “differences”, is a technique referred to as “reframing”. Reframing involves restating what each spouse has said in a way that is less likely to be met with resistance or hostility. It can involve changing the tone, perspective, or meaning of a statement or situation. Oftentimes it involves finding a way to take what each spouse is saying and remove the emotion from it so it can be better heard by the other spouse. It can be looking at what is behind that which is being said to get to the heart of it all while removing the stuff that makes the other spouse defensive or otherwise shuts them down. Finding ways to soften the dialogue and clarify the real issues is a constant task being tackled by the mediator, often subtly and unbeknownst to the couple involved.
BATNA and reality checks. Another standard tool in the mediator’s toolbox is the use of reality checks and the concept of BATNA. The term BATNA comes from a fabulous book written about mediation called Getting to Yes: Negotiating Without Giving In, by Roger Fisher and William Ury. BATNA stands for the best alternative to a negotiated agreement. Simply put, if a settlement is not reached, what will the resolution of the issue look like? What might you expect the Judge to do if it has to be litigated. If in mediation you are being asked to agree to something that is a much worse scenario than what you would expect to happen if it was decided by a Judge, you have no incentive to settle. If you are stuck in a position that is demanding much more than what you would achieve at Court, considering your BATNA will hopefully result in you agreeing to move off of the unreasonable position. I have had conversations with many couples about what things might look like if we can’t settle the issue. Falling out of mediation due to one spouse taking an unreasonable position should be avoided, especially if the offer being made to the unreasonable spouse is better than what they would likely achieve by taking the issue to the Court.
Creativity. Another wonderful tool in mediation to get past impasse is coming up with other options to consider. Investing some time in understanding what each side wants and why they want it can place the mediator and the couple in a position of putting some other options out on the table for consideration. Creativity and thinking outside the box has helped in my work to get out of tight spots. Sometimes it just takes stepping back and looking at things from a different angle. I have noticed with may of my mediation and settlement conferences working with attorneys and their clients that have been in the litigation process for long periods of time, that a neutral and fresh perspective on the case can often put some new options on the table that hadn’t been considered before to break the gridlock and move the case to settlement.
Active listening. Sometimes people involved in a dispute just need to feel like the other person hears them. Sometimes couples need to truly hear each other to better understand one another to facilitate getting to an agreement. Many marriages have poor communication as one of the big factors that have led to the breakdown of the relationship. One of the mediator’s tasks is to model good listening skills and guiding the couples they work with to do the same. I previously did a video on active listing which you can check out here: https://ahealthydivorce.com/?s=active+listening
Active listening includes giving undivided attention to the listener, including avoiding multi-tasking and making eye contact, providing proof that you have listened by paraphrasing what has been said and providing space for clarification if the paraphrasing is not correct. As mediators, sometimes having the couple simply acknowledge each other’s perspectives can go a long way toward getting over the hurdles as they come up. Poor communication can be a common cause of conflict which can be easily navigated by using listening techniques to help clear up positions.
Breakouts and separate sessions. My mediation style, especially with couples that are not formally represented by attorneys, is to work with both spouses in the same room. I do so for purposes of transparency to be able to clearly illustrate to both spouses the impartial role I am playing. With that said, sometimes when things get contentious, it can go a long way in turning down the heat to separate the couple. It is often the emotions that are getting in the way of settlement, and separating the couple will usually help to tone things down. There are also times in the mediation session where the mediator becomes aware of one or the other spouse growing quiet and clearly not participating as would be expected. In these cases the “elephant in the room” is some sort of discomfort that results in not being able to express what is on their mind. In these cases it is important to find the opportunity to check in with both sides and see what is really going on. We can use these separate sessions to find ways to provide the spouse needed support, to call out the spouse while out of earshot of the other spouse if they are not being reasonable, and to better understand the thought process that is going on out of plain sight.
Simple compassion. Part of our role as mediators is to help couples get past the emotions so they are in a space to make the business decisions. On the other hand, acknowledging the feelings of the couple and showing compassion and sympathy, is another important part of creating a positive atmosphere to place couples in the best place to tackle the challenges that will inevitably arise. This can’t be an act. Most of us mediators do this work because we genuinely want to help our clients avoid all the negatives that are associated with the litigated divorce. Sometimes it also just takes the other spouse acknowledging the hurt, to move the other spouse closer to common ground. Being thoughtful about the emotions in the room and having a plan to manage them is a consideration for every mediator as they work to help move the case along.
Keep asking those questions. Much of what we do as mediators is intentionally out of the consciousness of the couples we are working with. We know when we take up the work of mediation that the only way we can be successful is by finding a way to help couples overcome their differences. If we are having the couple turn to a Judge to make the final decision we have failed at our work. Before moving forward with mediation it is important to ask if there is a likelihood of it being successful. That hinges on whether we have two people that are willing to be reasonable toward one another. When you interview your potential mediator, I think you can skip the first part of the question about whether or not they have been faced with an impasse. If they have mediated more than 1 or 2 matters the answer will be a resounding yes. The better question to ask is what are some of their techniques to address impasse when it does arrive. This is a fair question to ask and the answer they provide may certainly give you some clear insight into whether or not they will have what is needed to help you through those difficult decisions.