The Impasse Anomaly and the Silent Instigators

By Christina L. Scott, JD

If you’ve represented clients in numerous mediations, you know that the reasons for impasse can vary greatly. The interesting thing is that these reasons are sometimes only the “perceived” reasons. I’ve learned in more than 17 years mediating that the true reasons for impasse, particularly in divorce cases are usually due to what I call the “silent instigators”. These silent instigators are in the room with you during the entire mediation and many times, you may not know it.

As a neutral, I have the incredible opportunity of working with both parties. Typically, in caucus, while asking questions of the parties and helping them to formulate offers, the instigators are revealed. The instigators are the vows, ultimatums, actions, emotions, games, goals, etc, that the parties have going on with one another prior to the mediation. The instigators are like a “motion picture” in the minds of the parties. And because of this, they are hard to overcome. The parties, many times, have never revealed these to their attorney but they are the driving factor for every reasonable or unreasonable position the clients may take. The instigators will completely derail the mediation in many cases and lead to impasse.

Here are some examples of some instigating factors:

• Wife is the Petitioner in the divorce and they have 3 minor children. Husband tells Wife that he will fight her “tooth and nail” for joint custody in mediation if she doesn’t agree to keep the child support payment under “$____” amount per month. Though Husband made arguments for joint custody, Wife knew he was not operating in the children’s best interest. His pre-mediation ultimatum led to impasse because Wife refused to agree to the child support Husband wanted.

• Wife is the Petitioner in the divorce. Husband is very mad about this and tells Wife prior to mediation that “no matter what, he is going to make her pay”. Husband makes a creative argument about ownership in Wife’s business that he cannot prove and/or asks for alimony though he has no basis. Such vows lead to impasse, because though Wife made a reasonable offer, in Husband’s mind Wife is not “paying” like he vowed she would.

• Husband is the Petitioner in the divorce with one minor child. Husband was the breadwinner with a traditional job and Wife had a small business that was not successful. They agreed to joint physical custody. Husband tells Wife prior to mediation, “You will get no money from me!” Though Husband’s income exceeded Wife’s 10 times, Wife did not want child support but requested a modest 5 figure payment as a lump sum so that she could “get back on her feet.” Husband refused to agree even though his child support exposure for a one-year period exceeded what Wife was asking. Husband’s goal of “not paying” caused him to walk away from the deal of a lifetime.

When parties allow the instigators to control and blind them, bad decisions are made. And the parties often miss the opportunity to settle. The best way to avoid situations like these is to make sure that your client is prepared for mediation. Have the real “heart to heart” and find out if there are any silent instigators at play on either side. The parties always know if there are. And unfortunately, you only know what your client wants you to know. Therefore, ask the questions! The more you know about what’s really going on, the better. Any settlement negotiation, including mediation, will be more productive if the instigators are exposed and removed beforehand.