OVERCOMING DEADLOCK
As negotiations proceed, parties sometimes reach deadlock -- often not due to out and out conflict, but rather due to resistance to workable solutions or simple exhaustion. A deadlock might signal that the dispute is unresolvable. But it’s always worth trying one or more of the following to break the deadlock:
1. Have a break. Often, things have a way of looking different when you return.
2. Park the issue. Ask the Parties if they can agree to set the deadlock issue aside temporarily and go onto something else - preferably an easier topic.
3. Take a deep dive. Ask each of the Parties to explain their perspective on why they appear to be deadlocked. Ask each Party to describe his/her fears.
4. Make the parties own the deadlock. Ask the Parties, "what would you like to do next?". This might help the Parties actively share the burden.
5. Telescope playback - Give each of the Parties a summary of what they have said so far so that the Parties can see the part they're stuck on, in overall context. Sometimes, the deadlock issue will then seem less important.
6. Restate the progress made. Outline all the areas they have agreed to so far, praise them for their work and accomplishments, and validate that they've come a long way. Then, ask something like: "do you want to let all that get away from you?"
7. Look to the future. Ask the Parties to focus on their ideal future; for example: "where would you like to be [concerning the matter in deadlock] a year from now?" Follow the answers with questions about how they might get there.
8. Suck it and see. If appropriate suggest a trial period or plan for the deadlocked item: “Could you try it for 2 months. If it doesn’t work we can reconvene.”
9. Be a catalyst. Offer a "what if" that is only marginally realistic or even a little wild, just to see if the Parties' reactions gets them unstuck.
10. Offer a model. Say: "sometimes, we see Parties to this kind of dispute agree to something like the following . . . ."
11. Try role-reversal. Say: "if you were [the other Party], why do you think your proposal wouldn't be workable?" or "if you were [the other Party], why would you accept your proposal?"
12. Ensure each party understands the other’s position. Ask Party A to state his/her position and why, ask Party B to repeat what B heard, and then ask A if B's repetition is accurate. Repeat for B. Listen and look for opportunities to clarify.
13. Fish for counter-offers. Ask: "what would you be willing to offer if [the other Party] agreed to accept your proposal?"
14. Reality-checking. For example, "what do you think will happen if this goes to court?" Draw out the emotional, financial, and other costs of litigation and delay.
15. Suggest ending the mediation. If all else fails, suggest (or threaten) ending the mediation. Parties who have invested in the mediation often won't want it to fail and may suddenly come unstuck. This approach is useful where one Party may be hanging on because he/she enjoys the attention the process provides or enjoys the other Party's discomfort.