7C: PROBLEM-SOLVING TACTICS:

CAUSES FOR IMPASSE AND EFFECTIVE INTERVENTION

TECHNIQUES:

TABLE OF CONTENTS

I. TIME-OUT 2

II. CALCULATED ADJOURNMENT 2

III. DEADLINES 3

IV. REFOCUSING ATTENTION 4

V. EMPHASIZING RELATIONSHIPS 4

VI. BRAINSTORMING 5

VII. USING EXPERT VALUATION 6

VIII. USING OTHER DISPUTE RESOLUTION MODES 6

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 I. TIME-OUT

Call a break - A brief respite, a coffee break, some fresh air and time to gather
thoughts - all these can refresh parties and the mediator, and help generate new
ideas.

Slow and fast. It is often seen that progress is slow in the initial stages. The
momentum picks up during the course of the mediation when the parties are
brought into the right frame of mind, and they begin to engage in negotiating
the framework of an agreement. That is when it may be possible to speed it
along. The mediator should not be worried about more time being spent in the
initial phase, and should not let it tag lag at the later stages.

Ask for movement now. This is particularly useful strategy if the parties feel
that the discussions have been going around in circles. The mediator can put it
to the parties that something must be accomplished within the next star or the
mediation will be terminated. Of course, once a movement is made the deadline
can be forgotten.

II. CALCULATED ADJOURNMENT

A calculated adjournment is sometimes a good idea. When the mediation stalls,

it might be that things are moving too fast for one or both parties. The speed at
which the process moves, from issues to positions to interests to options,
making them prioritise their needs and wants, all demanding their involvement
and energy, can prove too much to handle in a short time. So they may be
unwilling to move forward, only because they have moved a lot so quickly. It
can thus be expedient to suggest a brief adjournment.
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Make sure that it is brief. Long gaps between sittings are usually a bane; they
force mediators to begin all over again. In the intervening time between one
session and the next, parties tend to go back to their original stands. Old
animosities re-assert themselves, fresh obstacles get created, the impetus for
settlement wanes, and when they come back they can be as resistant as before.
Generally, it is good to keep the momentum going. In certain cases however,
longish adjournments are useful if, in the interregnum, factors favourable to the
mediation are expected; for example, the conclusion of another case which may
help in the resolution of this one.

III. DEADLINES

Working against a deadline can help. In most mediations, parties will start by
talking a lot about the history and background of the dispute . It takes them time
too engage in the process of searching for solutions. If time is open ended many
will remain unfocused for as long as they can. But when they are racing against
a deadline, bodies get marvellously more focused, tossing up and debating
options seriously. Mediators can make use of such factors. When parties are
fully engaged in the process, mediations can go on beyond normal working
hours. Sometimes when settlement is near at hand, the mediation can extend to
the late hours of the evening.

A caveat here. Where mediation sessions extend for prolonged periods the
mediator should be watch full to avoid a party dropping out citing tiredness or
complaining about excessive pressure. In one instance, the council for a party
complained that the mediator kept the session going till after midnight and his
exhausted client signed the agreement. The lawyer promptly moved to have it
annulled. The mediator must therefore use his discretion, refrain from forcing
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parties to continue and should not allow something which is manifestly unfair
like a party signing the settlement agreement which he is clearly unfocused on
account of tiredness.

IV. REFOCUSING ATTENTION

If resistance crops up midfield, it may be necessary to refocus the parties by

again making them look to interests, get realistic about their case and confront
the lack of alternatives should they not settle here. It’s because some of this
went home earlier that they came to the stage where they explore and discuss
ideas for settlement. While discussing possible solutions they have got bogged
down and have most probably lost sight of the several good reasons why they
should settle. Refocusing is, therefore, important. Bringing the larger picture to
their minds again makes them see that the current differences in their discussion
are of much less importance than the stakes at large.

For example, in the dispute over the bond given by the employee to the
company, both the employee and the Managing Director got enmeshed on the
difference between the amount to be paid by the former to the latter. It was
difficult to move them, until the mediator reminded them about what was at
stake outside and apart from what they were haggling over. The employee
realised that his new job and his marriage were dependent on ending the
stalemate; the Managing Director realised that his forthcoming huge contract
could be at risk if the stalemate was not ended. Suddenly both became very
reasonable.

V. EMPHASIZING RELATIONSHIPS

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One important way to get around impasse is to take the focus on to relationships
and show parties that in every dispute the relationship between the parties
suffers, and often does not recover from the beating it has taken. Getting parties
to think and talk about how it was before all this trouble started and how it can
be better in future, is an excellent way to get them to focus on the importance of
relationships in general, and this one in particular. This could help them to see
the dispute in a perspective that contains the background and features of the
good relationship that existed between them, and move them that one crucial
step closer to reaching out for agreement.

There are many significant relationships other than family ones- neighbours,
fellow workers, corporate directors and shareholders, to name a few. The
mediator should not make the mistake of thinking that because it is not a family
dispute, the relationship aspect is non-existent or not important. When it comes
to relationships, it will call for the meditor to be attentive and aware of factors
such as age, hierarchy, position, etc.- not to defer to these but to know how they
work, and to handle and balance them with sensitivity and subtleness.

The mediator’s approach should be a mixture of control, courtesy, caution and

correction.

VI. BRAINSTORMING

Parties should be encouraged to brainstorm options, to just think of all the

possible ideas, even if remote, without filtering them for chance of success.
Mediators call themselves throw up options. It is better if all options are first
generated rather than examining them one at a time. One way of securing
options is to keep a brainstorming box or bowl on the table, into which anyone
(parties, lawyers, mediators, etc.) can put in a piece of paper containing only
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their idea. The anonymity makes it easier for a suggestion for compromise, or
an out of the box idea to be mentioned and also enable someone lower in
hierarchy to contribute.
VII. USING EXPERT VALUATION

If the impasse is over the value of an item or property- for instance if parties
have agreed to sell and buy a piece of land and have a dispute about the price-
an expert valuator can be appointed to give a figure. It may be cast as
recommendatory, in which case the parties will be guided by it, but reserve the
right to bargain some more. Even when non-binding, the experts view,
especially if accompanied by reasons, will provide the benchmark for
discussion leading to positive outcome. Parties have the option of agreeing that
the opinion off the export will be accepted by both of them. A variation of this
is for the parties to agree on a band beyond which the expert cannot go higher or
lower, and to accept his figure.

VIII. USING OTHER DISPUTE RESOLUTION MODES

Take for example a complex matter involving a port construction agreement.

During the contract, disputes arisen regarding responsibility for certain items of
work, insurance claims, choice of subcontractors and valuation of work already
done. Parties reach agreement on the first three points. The fourth is not
resolving in mediation, perhaps because it involves technical examination an
parties are not willing to hazard figures. One solution would be to record
settlement on the three points and send the last component for arbitration. Such
arbitration should be structured for discovery processes and time.