Every experienced mediator would have encountered instances where they have had to facilitate a joint session that is stuck in an impasse, with both sides unwilling to arrive at a compromise. As every experienced mediator would know, a situation like this is a strong indication that the mediation is most likely to end without a concrete resolution.
So what can mediators do to break an impasse, bring clients back to the table, and make the joint session a success? The answer lies in establishing an exchange of new information between the clients in order to recreate an atmosphere of fruitful dialogue and move forward toward a resolution.
EXCHANGE OF INFORMATION: THE KEY TO BREAKING AN IMPASSE IN A JOINT SESSION
The most important step that mediators can take when they sense the joint session is approaching a dead end is to re-establish communication between the clients. The mediator can speak to the client and their lawyers together or separately. He or she must re-emphasise the fact that achieving a resolution is in their best interest, as opposed to the matter being solved via litigation. The mediator can encourage the clients to make a fresh start by sharing relevant information pertinent to the dispute and present their case on the basis of this shared information. Leading mediators have found this tactic to be immensely useful in reconstructing dialogue between clients and in guiding clients to a satisfactory resolution.
Such exchange of information helps break an impasse during a joint session in the following ways:
- It builds trust and demonstrates the client’s willingness to cooperate to achieve a resolution.
- It generates mutual empathy and gives the other party a better understanding of the situation.
- It lends credence to the demands that a client has made, and wherever justified, it may encourage the other side to accept the demands.
- Sharing new information may bring critical information to the fore that could help in arriving at a solution quickly.
- Sharing information leads to renewed discussion in the light of the new information, which allows clients to refresh and correct their perspective of the dispute. Improving their perspective of the case dissuades clients from insisting on unreasonable demands that can bring matters to a standstill.
- It encourages dialogue and helps the mediator re-establish communication between the clients, thus creating a conducive environment of give and take to culminate a peaceful resolution.
People involved in a dispute are often reluctant to share information openly, fearing that it may work to their disadvantage. The mediator must talk to the clients to allay such fears and encourage a free flow of information between the clients to arrive at a fair and mutually acceptable solution.
It is best for mediators to pre-empt situations that can spiral to a deadlock by using the pre-mediation phase so as to build a good rapport with the clients. The mediator can meet clients separately before the joint session to understand expectations and identify common grounds, then tailor the mediation agenda based on this groundwork.
Joint sessions in mediation have come a long way since the informal sessions of yesteryear that were not planned adequately and were more likely to lead to chaos than to a resolution. Nowadays, joint sessions are more likely to yield a successful outcome than before as mediators are taking time to talk to clients and their lawyers to discover underlying issues before deciding on the process that will lead to progress for the case.