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Home > Country profiles > Canada > Articles > Article detail

Overcoming Impasse in Mediation

Saturday, 1st December 2019

“Impasse” – a situation in which no progress is possible, especially because of disagreement; a deadlock.

Last time I focused on impasse in mediation, I noted that in my experience as a commercial mediator, impasse most often flows from a combination of cognitive biases and flawed risk assessments. This post suggests ways mediators can help parties in mediation move beyond impasse and achieve resolution.

Why are we at Impasse?

First, mediators must appreciate why lawyers and their clients are struggling with these cognitive biases. Cognitive science has identified two information processing systems within the human mind: System 1 and System 2. 

System 1 is an intuitive system that automatically and quickly processes information using unconscious innate heuristics and over-learned habits to produce a judgment in seconds. This is sometimes referred to as “fast thinking.”

System 2, on the other hand, is an analytic system that uses reflective, conscious thought processes to solve complex problems, so-called “slow thinking.” 

Cognitive biases, like Loss Aversion, Overconfidence Effect, Reactive Devaluation, and Confirmation Bias, as well as flawed risk assessments, generally flow from System 1 fast thinking. The challenge for mediators is to encourage the parties to think again using System 2 slow thinking.

For mediators, there are three critical skills for encouraging this shift: asking, listening, and telling."

Select the link to read this article in full:  

Source: Weiler ADR
Language: English
Contact: Rick Weiler

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