Thursday, December 3, 2009

Impasse is Something That Happens Pre-Mediation

In preparing for a Class I teach at Cal. State Northridge tonight on "Breaking Impasse" something occurred to me for the first time. Virtually all cases come to mediation already at impasse or deadlock. If they were in a productive and on-going negotiation, they wouldn't seek out a mediator. They would be able to resolve the conflict on their own. By showing up for a mediation, the parties to the conflict are offering the mediator the keys to unlock the "deadlock" and begin the movement needed to get to a resolution. Because my students are primarily engaged in community-type mediation, working on conflicts which are not in litigation, I also offered them two statistics: 1) In Los Angeles County, 96% of cases that are filed in court are resolved without going to trial (outside of court); 2) Of the cases that are NOT filed as Lawsuits, 100% are somehow resolved. None of those go to trial and somehow, they all go away or transform into something the parties can tolerate. So in the sphere of all conflicts, it's really a tiny percentage that end in such a "deadlock" that they can only be resolved by a Judge, jury or arbitrator declaring someone is right and someone is wrong. Surprising? Yes, but it sure gives mediators a huge opportunity to serve!

1 comment:

Joe Markowitz said...

For a lot of cases that are sent to mediation, it is not so much that they are at deadlock than that the parties and attorneys have decided, for whatever reason, that they were not interested in entering into a negotiation previously. In some cases, they may have been trying to gain an advantage through litigation. In other cases, they may have felt they don't have enough information yet about the value of the case to make a mediation productive. In still other cases, the parties may just have too much animosity toward each other to be able to start a productive negotiation. Ideally, a case should go to mediation when the parties are "ready" to negotiate, which usually works better than when they have already tried negotiating and reached impasse.