You know, people think that they are at an impasse...
But are they really?
Is there perhaps more room to move? Or are you really done?
In this episode, Host, Jean Lawler–commercial + insurance mediator and arbitrator–discusses the following:
- Two important mediator tools that she uses to test whether parties are at an impasse in mediation: “ifs” and ranges
- The benefits of “ifs”, and
- How to know when you are at an impasse
Resource Link:
Ambassador & Former National Security Advisor, Robert O'Brien Negotiation- Lessons From Diplomacy, Will Work For Food: The New Possibilities Hour presentation, April 13, 2023.
To read the full episode transcript please see the Podcast Website.
About the Host:
Based in Los Angeles, CA, Jean Lawler is an attorney and mediator, focusing on commercial, insurance and civil litigation matters pending at the trial and appellate levels - wherever filed. She regularly mediates a wide variety of insurance, business, and tort matters, as well as federal ADA accessibility lawsuits re architectural barriers and websites. CIPP/US (Certified Information Privacy Professional) certified, Jean also mediates matters involving data breaches, ransomware, and cyber losses. She has mediated hundreds upon hundreds - thousands - of cases over the years with a myriad of issues. For a more detailed sampling of the types of mediations that she has conducted and participated in, both when in practice and as a full-time mediator, please refer to her web page detailing Representative Matters.
Prior to becoming a full-time mediator in 2017, Jean was a Senior Partner in a Los Angeles based litigation firm, representing corporations, professionals, non-profits, individuals, and insurers in a broad range of matters, at trial and on appeal - mediating hundreds upon hundreds of cases over the years. Her legal experience has been diverse and international, and she has a deep knowledge of the insurance industry, insurance policies and the various risks they insure against (primary, excess, reinsurance, program, surplus lines, London Market, and international insurers). She also served as a Managing Partner of her former law firm, at times chairing the firm’s Insurance Law, Cyber & Privacy Law, International Law, and Business & Real Estate Transactions practice groups and, ultimately, served her many clients as counselor and trusted advisor.
As she would tell you if asked: “I absolutely love what I do! I would be honored to serve as your Mediator or Arbitrator.”
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Thank you for reading this transcript of the ROADS TO Resolution ~Closure ~Certainty Podcast for the episode entitled, “Testing Impasse in Mediation”. To improve readability, this clean verbatim transcript also includes additional headings (not part of the audio). The transcript is human generated, so there may be minor errors. Thanks for your time!
[intro music]
Hi, I’m Jean Lawler, I’m your host of the ROADS TO Resolution ~Closure ~Certainty Podcast, and it's great to be here with you today. Thanks so much for joining me. Today I thought that I would talk about: testing impasse. You know, people think that they are at impasse...
But are they really?
Is there perhaps more room to move? Or are you really done?
And this thought came to me because of the Will Work For Food New Possibilities Hour program on April 13, when Robert O’Brien, Ambassador Robert O’Brien, and our Former National Security Advisor, spoke about various things related to negotiation and one of his things was telling us not to leave the mediation without knowing whether or not you really were done.
And so I began to think about different ways that I do it, and I know other mediators do it, and of course, everybody is unique in terms of their own style, but here…So what is it that I do to question that?
Because as you know I have talked before about not giving up, and sticking with it even though it might seem a little bit hard or you’re ready to walk out the door or whatever. I learned that lesson real early about asking people to stay, “Please do not leave…”. And I’ve even gotten feedback from some attorneys when the case did settle, even though they thought that it probably wouldn’t, and the lawyer told me they stayed, she and her client, because I specifically had asked them not to leave. So, if you’re in a mediation with me, I will probably ask you not to leave even if you might be thinking, “this is going nowhere,” because you don’t know until you know. Right?
Two Mediator’s Tools: “Ifs” and Ranges
Anyway, let’s talk about a couple of the things that I do and that you could easily implement and incorporate into your negotiations or your mediations, whatever it might be, and of course, make it your own style—however it is that fits for you. I use “ifs” and I, you know I’ve told people this, and that’s, “ifs I don’t have the yips” but these are the “ifs”.
So I used my “ifs” to make hypothetical offers or demands at times when it seems like the parties are just so far apart there’s probably…you know, we’ll be going back and forth in maybe little increments or offensive types of offers or demands if we keep going the way we’re going. And I would just on my own initiative lots of times, talk to both parties (separately of course) when I’m in their room about what it might be that they would be willing to do…
“Look, if we could reach a settlement that would look something like this or that, whatever it might be, is that something that you’d be willing to consider?”
“You know, you don’t have to give me a commitment, but are we heading in the right direction if we do that?“
And so, you know, what if this or what if that?
And those are my “ifs” and they’ve really proven to be pretty good tools that I’ve found–for me to use.
Anyway, so between that and another one, which I like to use “ranges”, not formal brackets, but if it looks like the parties are way far apart and they need to be brought closer and it’s taking forever, in little incremental steps, to get them closer together, in addition to the “ifs”, then I might use ranges and just ask, “What type of range do you think this case should settle in?”.
You know, get the lawyer to say what it might be. And that certainly gives me an idea or…
“Look, if it could settle within this range of X and Y, would we be talking a range where you think you could probably agree to a settlement?”
And then I’ll do it with the other party as well, and then if they are willing to do that kind of thing…Well, first of all, maybe it's just telling me so then it gives me some guidance and to kind of help. But if they are willing to actually use a range, (a bracket for lack of a better word) in the sense of…
Look, we think that we should be negotiating in this range, and then is it okay then if I go back to the other room and talk to them about negotiating in that range and see if they would agree with that or what range they would do?
And then maybe those ranges cross over, maybe there’s overlap there.
The Benefit of “Ifs”
All of these are tools, and the one thing that I think is especially good about “ifs” as well as the ranges, but in “ifs” in particular on this is: those are really hypothetical offers and demands. They are not concrete dollars, money that’s being put out there, so nobody is at risk–if you will–if the other side is not receptive to what might be said. But it does get the parties moving and it does get them closer together, and then you go from the hypothetical, so to speak, from the “ifs” and the ranges back to actual numbers and then hopefully you can finalize the settlement.
And I have talked before about not necessarily just splitting the difference is an easy way…Not just asking for a mediator’s proposal is an easy way…and “easy” should be in quotes on this one, because it's not really an “easy” way. I really firmly believe that parties should be the masters of their own destiny and work out their own settlement with the assistance of the mediator, but not, if possible, not because a mediator puts a number on a case. They know their cases. They know their lives. They know what’s at stake. So those kinds of things…
Now, the “ifs” are also helpful to identify–getting back to impasse for a moment–How to tell if you are really at impasse.
Between the “ifs” and the ranges, if there’s no overlap or there’s, you know, you just keep going with that and you can be clear that: No, everybody’s in a different realm and there's just not going to be any “meeting of the mind”, so to speak, then you can pretty much know that you’ve probably reached impasse, and when you go home or after the mediation, you won’t be left wondering…What if I would have offered more or demanded less, you know, maybe I could have had a settlement.
I promise you there are many mediations where an offer, if it would have been made, probably could have settled the case, or a demand, if it would have been made, might have settled the case as well or at least gotten the parties so much closer that then they could have settled the case if they were still willing to work at it.
You know, getting back to Ambassador O’Brien and his comments, he felt that you would know you’re at impasse, if you make your best offer, your best demand, you put your best whatever it is out there, and it doesn't have to be as an actual formal offer or demand either…It could definitely be these hypothetical “ifs” and see if that would tempt the person and if the mediator is not able to convince the other side, or you’re not able to convince the other side as the attorney or whatever it might be, you know, your offer or demand isn’t enticing enough, then you should be able to go home and back to the office and know, okay there’s a reason why this didn’t settle and that’s fine. That’s what courts are for.
But it's just heartbreaking almost, as a mediator I hate it when I can tell the people are getting close but they’re not willing to keep working at it, so, you know, as I’ve said before–Don’t give up. Keep at it, and if it's meant to be that there can be a settlement that day, ideally it will happen. Again though, mediation is a process, and so if it's not meant that day, then later. And, as one lawyer told me once, “Mediation day is a very important day.”
And it is. And it absolutely is. So ideally you won't get to impasse, but when you find yourself starting to get to something where you’re thinking…Ugh are we ever going to settle this case? I don’t see how we’re ever going to settle it. Imagination and extra effort, and maybe start talking “ifs” and ranges, or dream up your own…There’s so many, so many ways that things could be done. There’s all kinds of things. Lots of tools in the toolbox. Okay?
So, don’t give up. And, if it’s impasse, it is what it is. If it's not, great if you can get over it. Alright, thanks. It's my pleasure to be with you again today. Jean Lawler, please feel free to follow me on LinkedIn. Follow my YouTube channel. Listen to my podcast. Just say “hello”. Thanks so much and goodbye. We’ll see you next time.
[outro music]