What Creative Solutions Can Mediators Facilitate to Resolve Impasses?

What Creative Solutions Can Mediators Facilitate to Resolve Impasses?

When deadlocks arise in mediation, it takes a creative touch to navigate through them. Drawing on the expertise of Senior Paralegals and Family Law Attorneys, we've compiled six innovative strategies that have effectively broken impasses. From reordering the importance of issues to crafting tailored co-parenting solutions, discover the unique methods these professionals have employed.

• Reorder Importance of Issues
• Facilitate Independent Couple Dialogue
• Explore BATNA and WATNA in Caucus
• Utilize Alternative Financial Resources
• Clarify Issues with Open-Ended Questions
• Craft Tailored Co-Parenting Solutions

Reorder Importance of Issues

When the clients are at an impasse, I give them a 10-minute break to stretch their legs or take a smoke/bio break. When they return, I go back to the beginning of the mediation, where the clients listed the items they wanted to address in the order of importance. Then, I offer to move the item to a different place in the order of importance. It is at this time they either focus on the item because it is important, or they realize that another item or items are more important or need to be dealt with before this one. This is an effective strategy.

Facilitate Independent Couple Dialogue

Recently, during a virtual mediation for divorce, I advised the couple that they would be discussing an issue which we hadn't resolved in many hours together, alone and without my involvement, for the next 30 minutes. I turned off my camera and muted my microphone and watched as they navigated a discussion that produced a solution. In this case, the couple had been together for more than thirty years, had raised a family, run businesses, and figured out life together. I believed they could get to a solution if I set an expectation that they act as adults, and that's what transpired. Very interesting work we mediators engage in, and the solutions don't always have to be centered through or around us.

Explore BATNA and WATNA in Caucus

I will meet with each client individually. In mediation, it is called a caucus. In that meeting, I will discuss their BATNA and WATNA (Best and Worst Alternatives to a Negotiated Agreement). We will cover how financial and emotional costs will impact them, their children, their jobs, their peace of mind, etc. Oftentimes, the impasse is not about what the surface is reflecting; it is about underlying issues. There may be pride issues, promises made that were broken, or simply the desire for an apology that is causing the impasse. If an impasse can be overcome, it will be overcome through communication.

Utilize Alternative Financial Resources

Create More Money from Other Sources

When there is no more to give on the defense side, a skilled mediator can guide mediation participants to create more money through other sources and to pay attention to protecting the money the claimant already has. Mechanisms like trusts and structured settlements can protect access to public benefits like Medicare and Medi-Cal and avoid tax hits on the income, even a tax-free settlement will throw off, as well as avoid bumping the claimant (and possibly the spouse) into a higher bracket. An insurance adjuster may be able to tap into an expense reserve to pay for things that would otherwise come out of the claimant’s share, including the mediator’s fee, after all the money in the liability reserve is gone.

Clarify Issues with Open-Ended Questions

Mediation is a forward-looking process, and if the parties are not ready to look to the future, nothing will get them there. But there are tools I use during an impasse that help dig deeper into the conflict. It helps to identify the interests and needs of both parties by asking those open-ended questions. Once the mediator is able to clarify the issues by asking the right questions, it becomes easier to build an agenda and keep the conversation moving forward. I also find it helps to remind the parties that mediation offers tailor-made solutions and that they are in control of the outcome.

Craft Tailored Co-Parenting Solutions

As a mediator, I am able to work with both clients, and we can take a bird's-eye view regarding marital property division and support in a way I could not do as a litigation attorney. From this perspective, we can create solutions that work best for the individuals and their forever co-parenting family. Maintenance and retirement division often hold the most emotional significance for people. In mediation, instead of dividing each item of marital property or looking solely at the statutory formulas, we can swap retirement account monies for real estate equity, or contribute towards the children's expenses and college in a manner that is 'in lieu' of a maintenance payment. We can create solutions that make everyone feel good in a respectful manner where the parties are in control of the outcome.