How to Break Through Impasse in Mediation

Impasse occurs in mediation when neither party is willing to compromise any further on an issue. When parties reach impasse, they’re likely to regard it as the end of negotiations. They may tell themselves that they tried their best and tell each other, “I’ll see you in court!” As a mediator, however, you know this is just the beginning of negotiations. This is where you thrive.

Many techniques for breaking through impasse are fundamental negotiating skills — asking diagnostic questions, anchoring, framing, reframing, pitching offers and counteroffers, bracketing, making concessions, and asking for reciprocity. But you need to know how to apply these skills in the context of impasse.

To break through impasse, you must first ask each party diagnostic questions. Pretend that the parties are from Mars. Like hypothetical Martians, the parties are a complete and utter mystery to you until you find out more about them, their motivations, and the reasons underlying their dispute.

You must ask questions to determine what they want and need, who they’re afraid of, why they’re so angry, how they got into this mess in the first place, where they’re hoping the mediation leads them, what their preferred resolutions are, whether they’d be open to other solutions, and so on.

Diagnostic questions extract all this valuable information from the parties so that you can begin to consider solutions that serve each party’s interests and address each party’s concerns.

Before looking at the questions, however, work through this exercise to experience the difference between powerful questions and the weak questions that most people, even experienced attorneys and mediators, typically ask:

A man walks into a bar. The bartender pulls out a gun and points it at the man. The man thanks the bartender and leaves the bar.

What the heck happened here?

Most people try to figure out what happened by asking weak, closed-ended questions — yes/no questions that begin with “Did he” or “Was he” or “Might he have been.” Here are some of the weak, closed-ended questions that partners in major national law firms, film studio executives, and managers of Fortune 500 companies have asked when performing this exercise:

Did the bartender know the man? No.
Did the man threaten the bartender? No.
Did the man ask the bartender a question? Yes.
Was the bartender afraid? No.
Did the question make the bartender pull out a gun? Yes.
Was the question whether the bartender had money in the cash register? No.
Did the man match the description of a wanted criminal? No.
Did the man look disturbed or angry? No.
Did someone else warn the bartender that the man was about to rob him? No.

These questions assume the answer, extract no useful information, and leave the interrogator flustered. On the other hand, open-ended questions reveal additional details, including factors that motivate the parties to behave as they do. These are the same kind of open-ended questions all journalists are taught to ask in their first day of class — who, what, when, where, why, and how:

Why did the bartender pull out a gun?

Because the man who walked up to him had a bad case of hiccups.
What did the man with the hiccups say to the bartender?

He asked the bartender for a glass of water.
Why did the bartender pull out the gun instead?

Because the bartender believed that frightening people was a more effective way to cure hiccups.
Why did the man thank the bartender?

Because the gun ploy worked. The man’s hiccups were cured.

As you can see, these open-ended diagnostic questions are much more effective in eliciting useful information about what each person was thinking and what motivated his actions. Master mediators begin the problem-solving process by asking diagnostic questions, and they keep on asking them until the parties run out of answers. Unfortunately, only about 7 percent of all negotiators ask diagnostic questions.

In mediation, you’re working with individuals whose motivations may appear obvious on the surface but whose thinking is idiosyncratic, unpredictable, and often downright peculiar. You can’t read minds, but you can ask questions. Ask probing, diagnostic questions to gather the information and insight you need to break impasse.