One judgment call mediators must make is when to give up after, despite lengthy and frequent attempts to settle, parties have reached an impasse.
President George Bush - - who is said to be mediating the Israeli-Palestinian dispute, as did other U.S. Presidents before him - - commented earlier this week:
"It's essential that people understand, America cannot dictate the terms of what a state will look like," he added. "The only way to have lasting peace, the only way for an agreement to mean anything is for the two parties to come together and make the difficult choices, but we'll help and we want to help." (NYT, A8, 1/10/08).
Without commenting on the geopolitical aspects of President Bush's comments, please offer your opinion on when it is appropriate for a mediator to "call it a day" and declare an end to his/her attempts to help parties settle a dispute. I will use these comments in an article I am working on and will be glad to give you attribution if you wish.
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The last word a mediator wants to utter is “impasse.” When your mediation is heading down that stretch of road to nowhere you look for an off ramp—even if it only takes you metaphorically a few feet farther where there might be a turnaround spot. Trying to move one or more parties off their “final” positions is both a matter of skill and luck. If the case is high value and packed with emotion it may much different from a case which is relatively “trivial” but it may not. Parties come to impasse for many reasons and move past it for almost as many.
Asking to talk to each attorney, without the clients present, sometimes offers a window of opportunity. Sometimes attorneys want the mediator to take a certain tactic or make a point which they have been unable (or even unwilling) to drive home. A separate attorney caucus might offer the map to the off ramp from impasse.
But not every mediation can be resolved and even the deftest of touches will not alter the most intractable positions. When it is clear that there will be no meaningful movement, it is better for all to gracefully call it quits. It pays to leave the door open for another day, should positions change with further discover, or other evolving factors. Telling the parties you will be available to give it another try both calls it quits, but makes them think there might be a way.
Dena Schechter
January 16, 2008
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