Breaking Impasses in Judicial Settlement Conferences: Seven (More) Techniques for Resolution

Judicial settlement conferences present novel challenges to judges in assisting parties to settle their dispute rather than continue to litigate. Often, parties come to the table with cases that have festered for long periods of time and at great expense. In many instances, the judge faces the particular challenge of overcoming impasses that frequently occur during the negotiations. Impasses arise often, and for a variety of reasons. Each side may have genuine differences in their evaluations of the merits that cause them to demand more or offer less, preventing a meeting of the minds. Strong emotions or overly aggressive negotiation strategies may impede a settlement. An impasse may also arise due to a multiplicity of issues requiring resolution, or numerous parties who must all agree. A successful settlement judge must employ creative approaches to bring about a resolution, particularly when the negotiations appear at a dead end. The judge should be able to help the parties break through impasses with a process suggestion, additional information, or a settlement recommendation. Even if the parties appear completely deadlocked, a judge can reach into a toolbox of techniques to overcome the obstacle before everyone simply walks away from the table. Judges should therefore have a number of useful impasse-breaking techniques at their disposal. I previously wrote an article in which I described five such techniques: (1) creating a range; (2) recommending a specific number; (3) splitting the difference; (4) clarifying objective facts; and (5) setting firm deadlines. This article describes seven more tried-and-true impasse-breaking techniques that judges may add to their settlement arsenal.