Commercial Mediation Part V: Impasse Breaking and Risk Analysis

There comes a time in many a mediation when it appear that talks have come to a halt.  In Part V of our Commercial Mediation series, we explore various methods of moving parties and counsel from being frozen in their communications, proposals or bargaining positions to return to creative negotiations. The methods and skills considered include reframing, reflection back, "stroking," normalizing, changing the agenda, use of standards and risk analysis, bracketing, conditional offers, baseball arbitration, neutral evaluation, the mediator's proposal and more.  We also include a discussion of the "technique of no technique" - the critical role of something greater than any skill or technique in resolving an impasse.

In addition, Part V looks at the elements of risk analysis and examines the benefits and subtleties of this mode of exploring case strengths and weaknesses. We consider the theory and nature of risk analysis, with includes characteristics of both art and science.  We look at the importance of information gathering as a prerequisite for this process.  Apart from the information itself, participation in information gathering and assignment of risk values generates the "buy-in" of parties and counsel.  Risk analysis enables the mediator to generate a case assessment that arises from collective effort, rather than being identified with the mediator as a product of his or her unique perspective, judgment and experience.  It can be a collaborative process consistent with the nature of mediation, preserving the mediator's appearance of neutrality.  We run through the stages of developing a risk analysis, with events, decision points, values, probabilities and outcomes. We consider its supporters and detractors, its potential and limitations.

Learning Objectives:

I.     Identify and diffuse signs of impasse before the freezing or breaking off of talks, keep people at the bargaining table, and restart talks

II.    Become familiar with some common impasse-breaking techniques, including: 

            a. Reflection back

            b. Reframing

            c. Normalizing

            d. Stroking

            e. Bracketing

            f. Conditional offers

            g. Mediator's proposal

III.  Appreciate the power of orientation, presence, deep listening, and genuine connection to overcoming an impasse

IV.  Understand nature, theory, and uses of risk analysis and recognize risk analysis as a preferred alternative to a mediator's proposal 

V.   Cultivate effective information gathering and assessment

VI.  Recognize risk analysis as a collaborative effort to develop and deliver an outcome

VII. Make the most out of risk analysis without being a prisoner of outcome and use risk analysis to plug in alternative assumptions to loosen party fixations, obtain "buy-in" of parties and counsel

VIII. Identify the potential and limitations of risk analysis