MISSION: IMPASSEBLE

I’ve been a fan of Mission: Impossible — first the television series, including its remake in the ’80s, and now the movie franchise starring and produced by Tom Cruise — since the day it first aired on September 17, 1966. With “Mission: Impossible — Fallout” having opened this past weekend, what better time to revisit and update the August 2015 edition of Resolution Strategies . . .

“Good morning, Mr. Siegal:

“After years of open hostilities, warring parties finally agreed to pursue a diplomatic solution to their ongoing feud. Unfortunately, negotiations recently stalled and both sides are now threatening to walk away from the bargaining table and ratchet up the conflict. Your mission, should you choose to accept it, is to devise a strategy to break the impasse and then assist the parties to negotiate a peaceful resolution to their long-running dispute. As always, should you or any member of your IM Force be caught or killed, Judicate West will disavow any knowledge of your actions. This email will self-delete in five seconds. Good luck, Floyd.”

LIGHT THE FUSE!

Mediators can confront seemingly impossible missions on an almost daily basis. Just last week, impasse seemed inevitable in back-to-back mediations that I conducted.

The first was the pre-litigation mediation of a wage-and-hour dispute, with additional allegations of discrimination thrown in for good measure. The parties arrived at mediation having exchanged an initial demand of $500,000 and an opening offer of $20,000. Knowing there had been precious little information exchanged prior to mediation, I first convened a brief joint session between the attorneys so they could share their respective views of the claim with one another.

It immediately became clear — to me, at least — that traditional negotiations were destined to fail. Instead, I convinced the parties to negotiate blindly, with each side revealing their next and all subsequent demands and offers to me in writing — confidentially — with the understanding that I would not disclose any numbers unless and until I believed there was a genuine possibility the parties could reach a settlement.

Negotiations broke down more quickly than even I expected, but further discussions with counsel, separately and privately, led them to request that I present a Mediator’s Proposal, which is currently pending.

The next day, I mediated a habitability claim which resulted in what appeared to be an impasse with the parties still separated by a gap of more than $200,000. After a joint discussion of the merits with counsel, I asked each side to write down their “best” number and provide it to me in strict confidence, which they agreed to do.

Armed with that information, I gathered the attorneys for a further meeting and asked whether they would want me to reveal their respective numbers if those numbers were only $10,000 apart. Naturally, everyone said “yes.” I then asked whether they would still want me to do so if their respective numbers were $25,000 apart. Again, everyone said “yes.” Next, I asked whether their answers would be the same if their respective numbers were $50,000 apart. Once again, everyone said “yes.”

Of course, that’s exactly how far apart they were, and they quickly agreed to split the difference.

When it comes to finding ways to break an impasse, never accept that the mission is impossible.

Best regards . . .

Floyd J. Siegal

P.S. If you would like to engage in a mediation process in which impasse is literally impossible, consider “Baseball” Mediation — a process I have designed which has a built-in protocol for resolving an impasse. If you would like more information, please don’t hesitate to contact me.

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