Does the Impasse Buster require the convening of a second mediation conference?
No, the Impasse Buster is a supplemental mediation process that is implemented after adjournment of an in-person mediation conference. The Impasse Buster requires no travel. The streamlined process is conducted online, via email and telephone conference.
So, the Impasse Buster is similar to Priceline(R), only it involves post-conference mediation proposals instead of hotel rooms?
Yes, and we sure are glad that you asked it that way. The Mediator plays the role of “the Negotiator” on Priceline, without the over-acting (unless requested). Defendant plays the role of the hotel provider and Plaintiff is the consumer.
How does this process work similarly to Priceline®?
Plaintiff submits up to three confidential Bids to the Mediator. If Plaintiff makes a Bid that Defendant is willing to pay, then the parties have a deal at the Plaintiff’s price.
Does the Mediator reveal Defendant’s Authority if a settlement is reached?
No, the Mediator reveals only whether or not a Bid from Plaintiff has been accepted (just as Priceline® reveals only whether a bid has been accepted by the hotel). This rule is designed so that Defendant has zero reason to “hold back” on Authority instead of “throwing it out there.”
Do we have to attend a mediation conference first?
For all the reasons why mediation has become so popular and successful, an in-person mediation conference is recommended before utilizing the Impasse Buster. The Impasse Buster is for bottom-line negotiations, after the issues and interests of the parties have been vetted, and the parties are ready, willing and able to negotiate the final “number” that will settle the case. It is recognized, however, that there are certain situations (such as dealing with large volumes of claims from a hurricane) where time is of the essence and a half-day or full-day mediation conference is not feasible. In those situations, we explore the issues and range of probable agreement in abbreviated telephone or video conferences before bidding opens.
Why does Plaintiff get three chances to bid and Defendant get one opportunity to submit authority?
Plaintiff may make up to three bids because settlement occurs at the bid price. Defendant is required to put its best foot forward by conveying its maximum settlement authority to the Mediator in confidence. This system is based on real world mediation experience from hundreds of cases. Plaintiffs frequently want to test up to three bottom-line numbers. Defendants frequently are reluctant to throw their real best number on the table out of fear that Plaintiff either might accept less or not accept the offer at all. The Impasse Buster process solves those problems.
Does the Plaintiff have to use all 3 Bids?
No. Bids are reviewed one at a time. If the Plaintiff’s initial Bid is equal to or less than Defendant’s Authority, then the case settles for the initial Bid. If Plaintiff’s Initial Bid is more than the Authority, Plaintiff may, but is not required to, make up to two additional bids.
What does "rounding" mean and how does that work?
Before bidding begins, the Mediator caucuses with counsel to determine how best to maximize the chances of settlement. One of the key points for discussion is the “rounding” of the numbers to be used in the bidding process. We iron out whether the Bid(s) and Authority must be rounded to the nearest $5,000, $10,000, $25,000, $50,000, $100,000 or more depending on the amount in controversy and the prior negotiations. The Mediator then prepares a drop-down menu from which Plaintiff and Defendant select the figures for consideration when they make their confidential submissions. For example, if the parties agree to round to the nearest $100k, then the only possible figures, for either side, are $100k; $200k; $300k, etc. Defendant’s Authority might be $300,000 but not $295,000. Plaintiff’s Bid might be $200,000, but not $212,000. Please note that Plaintiff’s second and third Bids, if necessary, may be any number less than the initial Bid, so long as the number rounds as agreed. Say we agreed to round to the nearest $25k and Plaintiff’s first Bid was $225k. Plaintiff’s second Bid, if needed, might be $175k, in fact it could be any number between $25k and $200k provided it is rounded to the nearest $25k.
May the parties opt to change the bidding rules?
Yes, custom bidding rules are allowed if all parties agree. The fee for utilizing the Impasse Buster may change. Parties who want to customize the process for a given case should consult with their Mediator.
Is the Impasse Buster the same as “online mediation”?
Not exactly. The Impasse Buster is conducted online, and via email and telephone, rather than at a conference. However, unlike previous online mediation efforts, the Impasse Buster uses real mediators in a streamlined and focused process that is the equivalent of the last ten minutes of a mediation conference, the time when the deal is struck.
Is the Impasse Buster the same as a “silver bullet” mediator’s proposal?
No, the Impasse Buster has the same goal as a “silver bullet” mediator’s proposal, but there are important differences. With the Impasse Buster, the parties, rather than the mediator, choose the bottom line offers. In addition, the Impasse Buster contemplates up to three swings, not just one “bullet.” Most importantly, if the Impasse Buster does not settle the case, neither the parties nor the mediator’s final proposals are revealed.
What happens if the Impasse Buster does not settle the case but we want to continue talking settlement?
Because the confidentiality of the submissions in no-pose negotiations is so important, generally, the Mediator who handles the Impasse Buster is not available to mediate the case further. However, counsel may resume negotiations on their own or with a second mediator. In large dollar cases, it frequently makes sense to engage a second Mediator to handle the Impasse Buster so that the original Mediator remains available to work with the parties in the event that the Impasse Buster does not settle the case. Please keep in mind that under no circumstances will the Impasse Buster Mediator reveal either side’s confidential submissions. The only figure ever revealed is a winning bid.
If I try the Impasse Buster, will I lose control over the settlement negotiations?
No, quite the opposite. The Impasse Buster frees parties up to put their best numbers on the table, in a totally confidential manner so that their candor does not come back to bite them should the case not settle. You lose control of negotiations when you are not able to execute your client’s instructions on settlement for fear that the other side will try to leverage any traditional offer that you might make against you.
Does the Impasse Buster work?
Yes. The track record for the first 22 cases was 19 settlements and 3 impasses. Some of these cases settled when counsel talked between themselves immediately after bidding concluded. When both sides participate in the process as designed, that is, they commit to real, no-pose negotiations, we get to the printer, at rates that far exceed initial expectations.
Mediation was a bust. I am pretty sure that my case is going to trial. What good is the Impasse Buster?
If you think that your case has a high likelihood of going to trial, the Impasse Buster is especially beneficial. You can use the Impasse Buster to ascertain whether the other side was bluffing or is really committed to trial by submitting your courthouse steps number to the Mediator in confidence. Courthouse steps negotiations are inevitable. If you find out on the courthouse steps that the other side was willing to do $X – a figure that your client had authorized you to offer months earlier, you and your client will be asking yourselves why you did not settle earlier – and spent so much time, effort and money in the interim.
What do I have to lose by trying the Impasse Buster?
See the column on the right. If the Impasse Buster does not settle your case, all you are out is the fee. Of course, if the Impasse Buster could have settled your case, but instead you continued to litigate for a few unnecessary months or years, you will have lost a lot more than the fee.
How Much Does It Cost?
Typical per case (flat) fees
Our typical per case fees are based on the amount in controversy:
|less than $250,000||$ 625 per side|
|between $250,000 and $500,000||$1,200 per side|
|between $500,000 and $1,000,000||$1,750 per side|
|greater than $1,000,000||$3,000 per side|
- The “amount in controversy” is determined by the lowest settlement offer proposed by Plaintiff prior to submission to the Impasse Buster.
- Prices are confirmed when the engagement is accepted.
- Please contact us if you have any questions about pricing.
Address: 4006 S MacDill Ave, Tampa, FL 33611, USA