I have recently been reading David Hoffman’s book The Art of Impasse Breaking in Mediation. Hoffman is a law lecturer and mediator who draws on decades of experience to describe more than 50 techniques for moving parties beyond deadlock.
I will highlight three insights taken from his work, that have been particularly relevant to my practice as a personal injury and workplace mediator.
1. Diagnose the Real Barrier
Sometimes the most important step is identifying what is actually causing the impasse.
In many personal injury claims, the apparent obstacle is disagreement over value or quantum. Rather than focusing solely on the numbers, it is often more useful to examine the differences in methodology underlying each party’s assessment.
Helping parties understand the approaches that have led to differing views is of value, and important to identify, before any meaningful reality testing begins.
On this point, reality testing is (in my experience) the most common technique used by personal injury and commercial mediators. There is a wide array of styles and approaches used to undertake this process, with my approach being less evaluative than others. That is, I try to avoid being seen to be in the business of 'persuading' parties that they are necessarily wrong. Rather, my goal is to ask questions and hopefully help the parties make informed decisions about their alternatives, risks, and prospects.
I appreciate that this is often a fine line.
2. The use of narrative and acknowledgement
Whilst understanding the source of an impasse is important, progress often depends on addressing the human dynamics beneath it. This is particularly relevant in workplace mediations.
One of Hoffman’s observations is that people often need to feel heard before they are ready to negotiate. I think this also applies more broadly to personal injury mediations, more so than many people may think. For example, this week I helped facilitate the resolution of a sensitive personal injury claim, in which the plaintiff was encouraged to speak openly in the joint session about some of her struggles. It worked in this instance to create a human connection. That said, as a mediator, I am a big believer in never being seen to get in the way of the relationship between lawyer and client- in this instance, it worked because the plaintiff's legal team were on board with this approach.
It is remarkable how genuine acknowledgement of the impact of events, combined with space for listening, can shift the dynamic of a negotiation. Once parties feel heard, they are often less focused on the numbers, slightly less concerned with the perceived “winning" of a negotiation, and more willing to engage constructively.
3. Building Momentum through Partial Agreement
Once parties feel heard and are engaging constructively, the next challenge is maintaining that progress. One effective way is through incremental agreement.
Not every issue can, or needs to, be resolved at once.
This is particularly relevant in workplace and commercial mediations. Identifying and resolving less contentious issues first can build momentum and establish a pattern of constructive engagement before tackling more difficult matters.
Again, you could be forgiven for thinking that this may be less applicable in personal injury mediations, where negotiations typically centre on a settlement figure. Even so, it is not without application. Agreeing to narrow the issues, or identifying what is genuinely in dispute, can (by itself) shift parties from a mindset of disputation to one of problem-solving.
Taken together, these techniques reflect a common theme: impasses are often resolved not by pushing harder on positions, but by better understanding barriers, acknowledging the people involved, and creating opportunities for small and incremental progress.
In any event, Hoffman’s work is a useful reminder that impasse is not the end of the process. More often, it marks the beginning of the real conversation.
I regularly share short insights on mediation, negotiation and all things leadership. From how to optimise success in negotiations, to the skillset required to sustain high team performance and promote resilience. I share these video reflections, drawing from my experience both as a former leader in professional services and now as a mediator and leadership coach.
"Damien is an incredible Mediator. He is experienced, is always across the brief and has a depth of legal knowledge that can assist the parties to navigate even the most complex issues to reach a resolution. Damien is my first choice for any Mediation, especially for vulnerable plaintiff’s feeling overwhelmed by the process as they are immediately comforted by his affable and empathetic nature.”
Damien was engaged as an Executive Coach in our business to navigate a half-decade of poor habits, realign our leadership team and position us for a strategic exit.Facilitating an executive workshop was instrumental in resolving internal conflicts and realigning us to a collective focus on future opportunities.
I have especially appreciated your logical and calm approach to problem solving, and I have valued your methodical and composed demeanour in tackling complex issues. You have not only equipped me with effective strategies but also instilled a sense of confidence and clarity in my own decision making processes.
