(From the JAMS ADR Blog)

Hon. Patrick J. Mahoney (Ret.)

Hon. Patrick Mahoney (Ret.) joined JAMS after more than 40 years of experience as a judge and civil litigator.  He is based in San Francisco and can be reached atpmahoney@jamsadr.com.

A successful mediation requires preparation and an understanding of the process so as to avoid impasse, the breakdown of the process.  It is important to understand why impasse occurs and how to move beyond impasse to achieve a successful settlement.

The consequences of impasse in mediation can be significant and severe. If a case does not settle, the result of any one trial is anecdotal information. There is, however, a study of more than 9,000 settlement decisions that found that 61 percent of the time plaintiffs recovered less than the last pre-trial offer and 24 percent of the time defendants paid more. Plaintiffs’ errors cost on average $43,100 and defendants’ $1,140,000. Errors increased in contingent fee cases and where insurance was not available, factors consistent with the established finding that parties take greater risks when they have something to lose.

Impasse arises from a failure of communications, poor negotiating skills, lack of information, emotional investment in a principle, disagreement over likely results, lack of authority, or a need for an authoritative ruling.

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