Starting Here, Starting Now: Using the Lawyer as Impasse-Breaker During the Pre-Mediation Phase

11 Pages Posted: 26 Aug 2011

Date Written: July 1, 2011


Success always comes when preparation meets opportunity.

Negotiations have reached an impasse, and mediation may be the next step. Or, litigation is proceeding, and mediation is strongly recommended as the next step. But is it the right step? In large part, whether or not mediation is the right step depends on the attorneys involved in the case. For those attorneys who are hell-bent on stonewalling the mediation, this mediator concedes your victory. Mediation is not the right step for your case. After all, an unspoken reality about mediation success is that most cases will only settle in mediation if all the attorneys involved in the case want the case to settle. However, if the attorneys on the case belong to the increasing numbers of resolution-sophisticated attorneys who are motivated to settle, mediation may be the right step.

This chapter will explain how during the pre-mediation phase, the time between contracting with the mediator and actually convening for mediation, mediators may guide those settlement motivated attorneys to overcome impasse and resolve their case in mediation. From the first phone call, pre-mediation opportunities abound for astute mediators to support savvy attorneys to overcome negotiation impasses. What is the impasse? Why is the impasse preventing settlement? How might all the parties, lawyers and mediators collaborate to overcome the impasse? This chapter will highlight the pre-mediation opportunities for mediators to help attorneys and their clients develop collaborative, coordinated and effective advocacy approaches during three critical events in the pre-mediation phase: the first phone call, the client preparation and the briefing paper.

Suggested Citation

Greenberg, Elayne E., Starting Here, Starting Now: Using the Lawyer as Impasse-Breaker During the Pre-Mediation Phase (July 1, 2011). St. John's Legal Studies Research Paper No. 1916919, Available at SSRN: or

Elayne E. Greenberg (Contact Author)

St. John's University School of Law ( email )

8000 Utopia Parkway
Queens, NY 11439
United States


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