Breaking an Impasse

Bob* and Mary* were about halfway through their first mediation session when Bob announced that he was never going to leave the house. He did not want the divorce and did not feel it fair to have to leave his home. Mary indicated that she was okay with that but wanted her name off the mortgage so she did not remain liable for the payment.

Bob was willing to try to remove Mary from the mortgage but was very clear that he would not leave the house even if he could not do that. Mary was equally clear that she wanted her name off the mortgage and that Bob would have to sell the house if he could not do so.

Bob went to the bank and was told that his income alone would not support the mortgage payment and so he could not take Mary’s name off the mortgage and keep the house. When he reported this at the next session, Mary insisted that he agree to sell the house, and he refused. They had reached an impasse.

Bob then turned to me and asked if I would settle this for them. My first response was to inform him that, while I wanted to help them to reach an agreement, I would not dictate the terms of their agreement for them.

Rather, I would explore the reasons for the impasse and their options, and try to get them to focus on their respective goals and interests, to see if a solution could be found. I also suggested that if they were still unable to come to terms, they could each consult with separate attorneys to see what might happen if the matter were to be decided by a judge.

However, before consulting separate attorneys I had one important suggestion; when they met with their attorney, that they find out how secure the attorney was about what he/she believed would happen if the matter were to be decided by a judge. Specifically, would the attorney be willing to waive his/her fee if the result they believed would happen was not the result they obtained?

Of course, an attorney is not going to do this! His or her job is to predict what they think might happen if the matter were to be decided by a judge and then try to present the facts to the judge in the most favorable light. But guarantee a result?  There are too many variables in the situation to allow the attorney to do that.

Once Bob and Mary realized that there were no guarantees in the legal system, they both decided to continue with the mediation and find a solution that both of them could live with.

So there you go. If there is no guaranteed result, why take a chance? Why not find a solution that you can guarantee, one that you create yourself. That is what mediation is all about.

In this instance, Bob agreed to pay the mortgage faithfully each month and Mary agreed to allow her name to remain on the obligation as long as he did so. They further agreed that if Bob did not make each payment on time as required, he would then agree to immediately put the house on the market.

And that is how you break an impasse.

*Not actual persons