Meeting the Challenge of Impasse

Sep 24, 2021

Potential divorce mediation clients are sometimes concerned that they will not be able to come to agreement on decisions that need to be made to end their marriage.

A mediator cannot guarantee a successful outcome, measured by both spouses being satisfied with the final agreement. Yet most mediations succeed, even many that seem doomed to failure because of impasse. Why is that?

When mediation is in jeopardy with my clients, I take every opportunity to point out the risks of leaving mediation and going to court—an indefinite delay in the outcome, polarization of children, emotional impacts, disintegration of trust and loss of control over the result.

Sometimes, simply pointing out how ugly the alternative is helps you try harder to find a solution that will work for both of you.

However, this may not be enough to motivate a shift for an entrenched spouse. So then what?

In handling a potential impasse in divorce mediation, ask yourself if a huge difference between the two of you may actually be smaller than you think. A mediator has an opportunity to pour a drop of optimism into a pool of negativity. I outline all of the current areas of agreement—and usually there are many things you already have agreed upon. Noticing what has gone well can refocus everyone, so that bridging a gap may no longer seem insurmountable.

In an effort to rescue a mediation that is facing impasse, here are some suggestions I share with my clients:

1. Ask yourself if a huge difference between the two of you may actually be smaller than you think. A mediator has an opportunity to pour a drop of optimism into a pool of negativity. I outline all of the current areas of agreement—and usually there are many things you already have agreed upon. Noticing what has gone well can refocus everyone, so that bridging a gap may no longer seem insurmountable.

2. Think through possible outcomes in litigation. This may require a consultation with an attorney, which I highly recommend in these situations. In fact, I have often employed a strategy of engaging a neutral attorney to explain how a judge might decide a similar issue. Frequently you will hear that the outcome in court could be uncertain. So I point out that, by leaving mediation, you are gambling on the result. Is holding the line on your position worth it?

3. Consider the full cost of litigation. A mediator can ask you to analyze the total cost of taking a divorce to court. This isn’t just about the money you will spend on attorneys, experts, etc. What about the costs associated with spending time in court, the emotional stress, the impacts on your future co-parenting and your relationship with your children? Is the cost of not changing your position worth what you will expend in money, energy, time and stress?

4. Don’t underestimate the value of settlement. How much can you save (see above) by shifting your perspective closer to that of your spouse and perhaps reaching an agreement? How much are you willing to pay for maintaining a good relationship with your children’s other parent? How much is it worth to you to put this experience behind you more quickly by staying in mediation and working to an agreement?

5. Get help. One of the key features of the mediation process is that there is a wealth of neutral knowledge that can be brought into mediation to assist the mediator in helping you work through your differences. For parenting disputes, we can engage a child specialist. While I have strong financial skills, sometimes it may be better if we bring in a financial neutral as a fresh face to explore options for settlement. Finally, we can agree to bring in a collaboratively trained attorney for each of you for one session, to provide legal support that is focused on problem solving.

I will use whatever tools I have to produce a successful outcome, As long as you don’t give up, I won’t either.