Ten Tips for Busting Impasse in Mediation
Ultimately, mediation is an exercise in breaking through impasse — a period during which the parties have lost hope that they can resolve the matter on that day and in that place. Impasse isn’t the end of negotiation; it’s actually the beginning of the end, the starting point for the negotiation process. Your job is to keep the parties at the table and get them to start talking again.
Harnessing the Power of Bracketing
Bracketing allows the parties to test the waters without dropping an anchor there. Without asking the parties to reveal their bottom lines, ask each party the question, “If your opponent came down to $X, would you come up to $Y?” Bracketing enables the parties to play with hypothetical numbers in order to narrow the distance separating their positions without having to make a concession.
Narrowing the gap with hypothetical offers and counteroffers allows the parties greater room to maneuver and also permits them to save face if their “last and final” offer or counteroffer is just another bargaining position.
Using or Avoiding Mediator’s Proposals
Mediators are often called upon to act as judge and jury by presenting a mediator’s proposal — an objective, third-party opinion of what would be a fair solution or what the mediator believes each party would accept, however reluctantly. A mediator’s proposal is often useful in the following scenarios:
The parties insist on a mediator’s proposal.
A party needs to answer to a hidden stakeholder and is more inclined to agree to a deal if he can explain that the mediator made a final proposal that he couldn’t, in good faith, refuse.
A party needs an authority figure to all but order him to compromise.
Making the Agreement Contingent upon Future Conditions
Making an agreement contingent upon future conditions is often useful if impasse is due to one of the following:
A party exaggerates the future value or cost of something to gain an advantage in negotiation.
One party believes the future will be more profitable than the other party believes it will be and wants to use the higher projection to calculate the settlement.
Drafting a High-Low Agreement
A high-low agreement is a form of settlement agreement in which the case continues toward traditional resolution through trial or arbitration but the parties agree that, whatever the outcome of the proceedings, the plaintiff will recover at least $X and the defendant will pay no more than $Y.
Under this arrangement, the plaintiff is certain to recover at least the number at the low end of the range, and the defendant caps his losses at a number he can deal with. A high-low agreement makes sense when the plaintiff, the defendant, or both need to avoid an extreme verdict.
Engaging in Baseball Arbitration
In baseball arbitration, each party submits a proposed settlement that she deems is fair, and the parties agree in advance that they’ll abide by whichever proposal the mediator chooses. Then, the mediator does one of the following:
Chooses the proposal she thinks is fairest.
Without looking at the parties’ proposals, presents her own proposal and then chooses the party’s proposal that’s closest to hers. (This is sometimes referred to as nighttime baseball arbitration.)
Calming Future Fears with Stipulated Judgments and Hammer Clauses
A party who doesn’t trust the other party to follow through on the mediated agreement is often reluctant to sign off on it. In situations like these, a stipulated judgment with a hammer clause may provide the assurance the person needs to commit to the deal:
Stipulated judgment: A stipulated judgment is based on the parties’ agreement that a judgment can be entered against the defendant if he fails to deliver on his end of the deal. In other words, if the defendant defaults, all the plaintiff has to do is prove nonpayment.
Hammer clause: A hammer clause applies a penalty for default. For example, if a party fails to deliver on a promise to pay a certain sum of money over a specified period, he must pay a certain amount more than the agreed-upon total settlement amount.
Transforming a Dispute into a Business Opportunity
Parties in dispute often have more than just money to bargain with. They have opportunities, skills, connections, possessions, and other assets. During a mediation, get to know the parties personally and professionally and encourage them to get to know each other better. Engage them in small talk to identify their needs and everything of value they can bring to the table.
Then look for ways to match the assets of one party with the needs of the other. Generating such options can melt impasse over hard, bottom-line, dollar and legal-position conflicts and transform a distributive negotiation session (“what I lose, you win, and what you lose, I win”) into a business opportunity that leaves both parties better off than they’d be if they were to win at trial.
Making Money Talk
Dollar values that appear to be objective carry subjective meanings that are useful in helping the parties understand each other’s position. When you ask the parties what they intend to do with the money or why paying it is so painful, you identify practical and emotional reasons that the parties have reached impasse.
Some people see a money payout as an apology or a way to exact revenge. Others have specific uses for the money, such as getting job training and education, buying something they’ve always wanted but could never afford, or providing security for the future. Knowing that the plaintiff’s monetary demand has a rational basis can often break impasse, as can suggestions to achieve the same goal with nonmonetary means.
Resolving Justice Issues
Beneath every monetary demand for a perceived wrong is a justice issue — a reason why the party believes she has been treated unfairly. A dispute is rarely just about the money. In fact, if you don’t help the parties identify the underlying justice issues, no amount of money may be able to resolve the dispute.
Strategically Using Apologies
Many disputes can be resolved with a sincere apology. If you feel that one party is stuck because he really needs and probably deserves an apology from the other party, consider raising the issue in separate caucus and coaching the party who needs to apologize on how to apologize effectively.
Careers Glossary
academic curriculum vitae resume
A resume format that includes a comprehensive biographical statement of three to ten pages. This resume format emphasizes professional qualifications and activities.
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accomplishment resume
A variation of the hybrid resume that includes qualifications and accomplishments.
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Americans with Disabilities Act; ADA
A document signed into law that makes it illegal for an employer to discriminate against (or refuse to hire) a person simply because that person has one or more disabilities.
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applicant tracking system
A software application that helps a company recruit employees more efficiently. Includes features to post job openings online, screen resumes, acknowledge the receipt of resumes, and generate interview requests.
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behavior-based interview
A type of job interview in which candidates are asked what kinds of behaviors they have used in the past to handle certain situations and solve problems.
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blog
A Web-based journal that is written and updated by one or more blog writers, or bloggers. Today's more sophisticated versions read like media stories and columns.
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branding statement
A marketing tool for job seekers consisting of a brief statement that communicates who you are in the workplace; typically used in resumes and job interviews. Also sometimes called a branding brief.
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broadcast letters
Self-marketing letters that a job seeker sends to a large but carefully targeted list of potential employers. These letters are designed to uncover an opportunity in the hidden (unadvertised) job market.
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career management documents
A family of job letters that are self-marketing tools for people who want to be hired for the best jobs. Includes job ad reply letters, broadcast and prospecting letters, resume letters, follow-up letters, and e-mail cover notes.
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competency-based approach
A resume style that focuses on the skills and talents needed to be able to perform a particular task to a certain standard. Connects your behaviors with your accomplishments.
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core resume
A starting resume that you use as a base or template to spin off targeted versions of your resume (for specific positions) when you must move quickly.
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cover letter
A self-marketing document designed to sell yourself and get an interview for a specific job; typically accompanies a resume.
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credit histories; consumer reports
Reports that contain your payment history to creditors. These reports may also include names of previous employers, residential stability data, divorce information, and estimated prior earnings.
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directive interview
A type of job interview in which the interviewer maintains complete control and walks you through the discussion to uncover what he or she wants to know.
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EEOC
Equal Employment Opportunity Commission. The EEOC is a U.S. federal agency that investigates discrimination complaints.
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e-mail cover note
An e-mail message that introduces a resume that you distribute online. Typically, a shortened and more informal version of a cover letter.
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e-resumes
Electronic resumes. Resumes that you distribute online.
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font
A complete character set comprised of a single size and typeface, such as 12-point Helvetica.
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font size
The height of the characters in a font set, measured in points, such as 10-point or 14-point. One point is equal to 1/72 of an inch.
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foundation skills
A skills language used in cover letters to communicate your expertise in fundamental job skills — includes basic skills, people skills, thinking skills, and personal qualities.
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functional resume
A resume format that focuses on portable skills or functional areas and ignores chronological order. This resume format works well for career changers, new graduates, ex-military personnel, work-history gaps, or special-issue problems.
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hybrid resume
A resume format that is a combination of the reverse chronological resume format and the functional resume format.
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instant messaging; IM
A real-time form of communication between two or more people online, who type messages back and forth in a window. Job seekers can attach resumes to messages.
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integrity test
A test administered by a potential employer during the interviewing process that rates honesty, responsibility, and reliability for the job.
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intellectual property
Work samples that you submit to a potential employer during the job interview process, such as portfolios, project materials, and proposals.
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international curriculum vitae resume
An excruciatingly detailed resume format used to apply for international jobs. This resume style is typically six to eight pages long and often uses the reverse chronological format.
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job ad reply letter
A letter that is written in reaction to a published job opening in print or online.
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job board
A Web site that posts general or specialized job listings, such as CareerBuilder.com and Monster.com.
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keyword resume
A resume format that places a profile of keywords at the top of a document. This resume format is not in common use today because current resume search databases can pick up keywords anywhere in a resume, not just at the beginning of a document.
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keywords
Internet search words (generally nouns and short phrases) that identify your qualifications. Employers use keywords to search and retrieve e-resumes in databases for available job positions.
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linear resume
A resume format that flows one line at a time and relates achievements, winning moves, and star points in short, quick spurts; designed to attract the eyes of busy readers.
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marketing pitch
A personal commercial that you create to sell yourself during a job search. A marketing pitch should be about one to two minutes long.
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nondirective interview
A type of job interview where the interviewer's questions tend to be broad and general so that you can elaborate and tell stories about yourself and your qualifications.
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OFCCP
Office of Federal Contract Compliance Programs. The OFCCP is an agency that tracks the diversity hiring record of those applying for positions with federal contractors.
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online executive bio
A short profile (about 200 words or less) that is placed on social networking sites and job boards to advance employment or business objectives. Includes keywords and a link to a full resume.
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online profile
A lengthy multi-link document that appears on Internet networking and career sites such as LinkedIn.com and VisualCV.com.
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online referral service
An e-mail job distribution method paid for by employers. This service helps you identify which of your contacts may know people at companies where you would like to work.
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online screening program
A form of pre-employment screening that verifies that you are a good fit for the position and that you haven’t lied about your background. May include online tests, assessment instruments, and questionnaires.
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patterned interview
A type of job interview (also called a structured interview) in which the interviewer works from a written list of questions asked of all candidates and writes down your responses.
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personality test
A test administered by a potential employer during the interviewing process that measures choice, preference, values, behavior, decisions, attitudes, and job-related interests.
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podcast
A digital audio or video file that is available for downloading from a Web site. Usually available in a series that is often packaged like a daily newscast or commentary.
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podcasting
The process of creating and distributing audio and video feeds over the Internet. To make a podcast, you need a computer, microphone, Internet access, and recording software.
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portfolio
A collection of work samples often delivered as part of the job interview process for those in fields such as design, graphics, photography, architecture, advertising, public relations, marketing, education, and contracting.
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professional resume
A resume format that emphasizes professional qualifications and activities and is typically three to five pages long. This format is essentially a shortened version of the academic curriculum vitae resume format.
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prospecting letters
Self-marketing letters that a job seeker sends to a relatively small and select number of potential employers. These letters are designed to uncover an opportunity in the hidden (unadvertised) job market.
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recruiter; headhunter
An employers’ personal shopper, tasked with going into the marketplace and bringing back the best qualified candidates for the thriftiest prices.
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resume blasting services
A service that advertises their willingness to save you time and trouble by “blasting” your resume to thousands of recruiters and hiring managers all over the Internet — for a fee. These services are generally not recommended due to privacy and identity theft concerns.
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resume letter
A self-marketing document that combines a cover letter with a resume (the resume is not a separate document). This type of letter is typically two pages long, but can be one page.
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reverse chronological resume
A resume format that includes employment history from the most recent jobs working backwards, showing dates for employers and educational institutions. This resume format works well for those with a steady career progression.
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screener
An employee (typically an administrative assistant or HR specialist) who monitors phone calls for a company when you call their main telephone line.
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screening interview
A first-cut job interview that is used to weed out all applicants except those who are best qualified for the position.
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selection interview
A job interview in which you meet with a supervisor, department head, or another person who has the authority to hire you.
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SEO
An acronym for Search Engine Optimization. SEO is a method of using technical and strategic maneuvers to increase the traffic driven by search engines to a Web site.
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serial interview
A type of job interview in which you are typically passed from the initial screener to a line manager to a top manager — and perhaps a half-dozen people in between.
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social networking services
Web-based services — including discussion groups, message boards, e-mail, and blogs — that give users a way to find and interact with people who have similar interests. Some of this interactivity focuses on job search and recruiting.
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spiders
Automated programs (software) used by specialized search engines to scrape (crawl) the Web to find and haul in content, such as job postings. Also called robots or just 'bots.
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stress interview
A type of job interview in which the interviewer intentionally uses various intimidation tactics to attempt to put pressure on you.
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targeted resume
A resume that is customized for a specific employment goal or position in a job search.
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typeface
A specific family of fonts in a similar design style (including multiple sizes of that font), such as Arial or Times New Roman.
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vertical job search engines
Online search engines that search only for job listings, across multiple job sites at once. Examples include SimplyHired.com and Jobster.com. Also called verticals or aggregators.
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video resume
A canned video interview in which a candidate speaks about his or her qualifications, goals, and strengths; sometimes called a video podcast.
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watermark
A faint image ingrained in quality-stock paper. Resumes are commonly printed on paper stock that includes a watermark.
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Web 2.0
The second generation of Web design that uses sites in which people communicate and share information. Web 2.0 tools include blogs, instant messaging, podcasts, RSS feeds, and social networking services.
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Web resume
An electronic resume that you post on a personal Web site; also sometimes called an e-portfolio or HTML resume.
