(Published in Family Dispute Resolution, Vol 2 No 4 (Sept 2012) of Family Law Review)
By Linda Kochanski
Assistant Professor, Bond University, Queensland
A situation that will always cause a family mediator some trepidation is when a mediation comes to a halt due to the parties reaching an impasse (“stalemate”, “stumbling block” or “obvious difference” are other ways of describing this). Impasses are a natural part of the mediation process. Even more so when parties are dealing with family law issues concerning children and property. Parties who have separated often hold strong beliefs and opinions about how the property should be divided or what should happen in relation to their children’s living arrangements and well-being. These opinions are often strengthened by the amount of time spent apart and the level of conflict that exists between the parties. The mediator needs to consider what might be the likely stumbling blocks when they are conducting the intake; although the stumbling blocks may not arise, it is good practice to consider and anticipate where the parties are likely to need assistance.
Parties who come to family mediation usually come with stated positions and it is these positions that create impasses. It is up to the mediator to provide an analysis of the impasse (to look behind the stated position to the interests and concerns of the party which are informing that position) and to work out which of the respective parties’ interests or concerns is the obstacle to moving forward and why.
There are three types of interests which may contribute to a party taking a particular position, leading to an impasse:
- substantive interests, which lead to content issues and concerns (what are the concerns to be dealt with);
- psychological interests, which lead to acknowledgment and recognition concerns (why do the concerns exist);
- procedural interests, which lead to structural concerns and constraints (how and when will the concerns be rectified).
An impasse in mediation can be a result of one, two or all three of the interest areas of the parties not being met. It is also often the case that a party cannot articulate why they are holding the particular position, it is therefore up to the mediator to use their skills to find out and assist the parties in negotiating possible options.
The mediator needs to work out which of the parties’ interests are contributing to the impasse. What overwhelms mediators is that the parties may appear to be so entrenched within their positions that no obvious room for movement seems to exists. A good starting strategy is for the mediator to summarise where the parties are positioned on the particular issue in dispute. This allows the mediator time to think about their next intervention and allows the parties to understand all sides of the issue. It also allows the mediator to identify which of the above interests may be at the root of the impasse.
One of the other general strategies that may be used for overcoming an impasse, whatever the cause, is having a private session with the respective parties. Where there is an impasse, a private session can assist the mediator to check what interests are triggering the impasse if they have not become clear within the joint session. The private session allows a mediator to challenge a party’s position without that party losing face in front of the other party. Note, however, that the timing of the private session is important and the mediator needs to ensure that they don’t move to private session too early, eg if an impasse appears to be reached early in the exploration stage of the mediation process.
Another general strategy for the mediator to attempt, if the impasse remains and no agreements or possible solutions can be reached, is to “reality test” the options. This involves the mediator asking questions of the parties about the costs to them if the matter is not resolved at mediation, not just the financial costs if the matters need a judicial resolution but also the time and emotional costs. Reality testing refocuses the parties on the bigger picture and, if they still wish to continue to hold their positions, they understand the impact of their decisions.
SUBSTANTIVE OR CONTENT IMPASSE
In the case of a substantive or content impasse a mediator has a number of options they may try in order to assist the parties to move forward.
The mediator should remind the parties of issues that have already been decided upon. Parties to mediation will often ignore what has already been achieved and become fixated on the “blocking” issue. The mediator here should remind the parties about what has already been agreed, and how far they have come, and ask them to consider whether they want to risk those agreements for the sake of the impasse.
It may be that the parties need to take a break from the mediation process to permit further information to be obtained. Many substantive impasses are the result of data conflicts. Data conflicts are conflicts about the data or information that the parties are negotiating over, or the interpretation of that data or information. A mediator should ensure that the information that the parties have, and the interpretation of that information, is objective and understood by all parties before proceeding further with the mediation.
The mediator may decide to change the process. It may become obvious that a different dispute resolution process is necessary. The mediator may determine that the parties require a more evaluative process, such as arbitration or expert appraisal, and therefore should be referred to this process rather than proceeding with the mediation process.
In the case of a psychological impasse, the mediator should be aware of any high emotion which may be contributing to the impasse. There are some particular strategies which may assist.
When parties are highly emotional and an impasse seems to have been generated from that emotion, the mediator should always consider having private sessions with the respective parties. Having time alone with the mediator may assist a party, enabling them to work through their emotional concerns before returning to joint session.
If the mediator considers that the parties are better able to deal with their emotional issues in a private session environment, the mediator may choose to change the structure of the mediation to shuttle mediation, where the parties remain separate and the mediator moves between them. This will assist in dealing with emotional impasses but also requires the mediator to work with their mediation skills in a different environment.
It may be that the mediator needs to refer one or both parties to other appropriate professionals; an emotional impasse may be so great that a party will need assistance from an outside professional such as a counsellor, psychologist or medical practitioner. The mediator may choose to cease the mediation and arrange for the referral, and then make a time to recommence the mediation once the parties have had an opportunity to receive the extra support needed.
The outside professional may also determine whether a party is able to continue with the mediation process or whether some other process would be best suited for that party. That professional may also become a support person for a party. A support person in the mediation is just that, a person to support a party through the process; they do not offer advice but help the party to deal with the emotions of the mediation. Of course, all parties to the mediation must consent to having a support person in the mediation room.
As mentioned above, it may become necessary to change the style of mediation being conducted. The mediator may decide to change the mediation into shuttle mediation or perhaps a co-mediation, where the mediator will seek the assistance of another mediator, to provide “more talent” in the room. Often, in family mediation, co-mediation with a gender balance will be important to provide balance and to model appropriate communication. Co-mediation with discipline balance, eg having both a lawyer and a social scientist (counsellor or social worker), will also assist in family mediation. The change in the mediation structure often allows the emotive issues to be dealt with in an appropriate manner.
When it comes to a procedural impasse, again there are again a number of strategies that a mediator may employ.
The mediator may try restarting the process they are using with a different independent third party, whether this is another mediator or a conciliator or even an arbitrator. This may be needed because the process doesn’t suit the matter or because the parties need to be guided in a different way. Sometimes the impasse is caused by the parties’ perceptions of the process. Some parties will see the mediation process as an opportunity for a fishing expedition or just to provide an obstacle to negotiations and possible agreement. The mediator needs to test, either in joint or private session, what the parties’ perceptions are, and how they are impacting upon the success or otherwise of the mediation process. If the parties are not willing to enter into the mediation process to resolve the issues then the mediator needs to consider what other process may best serve the parties. As in the substantive and psychological impasses, the mediator may change the mediation strategy they are using and consider the options to best promote negotiation between the parties.
The important thing to remember is that most family mediations will have impasses; it is the nature of disputes. Impasses are interests presented as positions because it is easier for the parties to make statements rather than express the interests behind them. Many parties don’t know how to express their interests and concerns and it is therefore the role of the mediator to identify the interest impasses and use a range of interventions to assist the parties to move through, around or on from the impasses into negotiations and possible resolutions.
Citation: (2012) 2 Fam L Rev 232