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The Impasse Buster Process

The Impasse Buster is a streamlined supplemental mediation methodology for converting impasses to settlements through No Pose Negotiations, a confidential bid process similar to Priceline®. All figures go to the Mediator only and not to the other side. Only a winning Bid – the settlement number – is ever disclosed.

No posing is necessary; no posing is allowed.

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• Defendant confidentially conveys to the Mediator the “top dollar” Authority for which it is willing to settle and Plaintiff confidentially conveys to the Mediator its “bottom line” Bid.
• The Mediator compares the confidential Bid to the confidential Authority, in camera. If the Bid is equal to or less than the Authority, then the case settles for the amount of the Bid. If the Bid is more than the Authority, then Plaintiff is invited to submit up to two additional Bids, to the Mediator only, one at a time.
• All figures are used solely for the Impasse Buster process and kept confidential. Only the settlement figure – a Bid which has been accepted – is ever disclosed. If the case does not settle, there are no traditional offers that might be used against a party in future negotiations.

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Step-by-Step Details: The parties work with the Mediator to resolve the material non-monetary terms of settlement and the bidding rules that will maximize the chances of settling the case, especially the rounding of the figures to be used in the bidding phase. The result: a mediation agreement that leaves only the dollar figure to be determined. The confidential bidding process is used to fill in the blank.

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Step 1

Mediation Agreement

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The Mediator and counsel confer on material non-monetary terms (payment terms, release terms, etc.) and the bidding details (most importantly, the rounding of the figures to be used in the process so that a Bid does not miss by just a few dollars) and the parties enter into a Mediation Agreement confirming the Impasse Buster terms applicable to the case.

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Step 2

Confidential Bidding

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Defendant conveys to the Mediator in confidence Defendant’s “top dollar” settlement authority (“Authority”), that is, the maximum that Defendant will accept to settle the case; and Plaintiff conveys to the Mediator in confidence Plaintiff’s “bottom line” bid (“Bid”) as the amount that the Plaintiff will accept to settle the case.

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Step 3

Impasse Busting

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The Mediator confidentially reviews the offers and if the Bid is equal to or less than the Authority, then the Bid is accepted and the case is settled! If not, Plaintiff may make up to two additional Bids, which the Mediator confidentially reviews one at a time. The only number ever disclosed is the settlement number.

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Save Time and Money!

[/vc_column_text][vc_message message_box_color=”sky” icon_type=”pixelicons” el_class=”h-save-p” icon_pixelicons=”vc_pixel_icon vc_pixel_icon-tick”]Impasse Buster mediations are conducted online, via email and telephone. There is no need to wait until the parties and counsel are available to convene a second in-person mediation conference. Mediate to bust impasse on your schedule, from the comfort of your home or office.[/vc_message][/vc_column_inner][/vc_row_inner][/vc_column][/vc_row][vc_row][vc_column][vc_message message_box_color=”sky” icon_type=”pixelicons” el_class=”h-box-1″ icon_pixelicons=”vc_pixel_icon vc_pixel_icon-tick”]

• Both sides are strongly encouraged to put their best foot forward with the figures they submit. There is no reason for a Defendant to hold back Authority and no reason for a Plaintiff to bluff with a high Bid. The Mediator discloses only winning Bids. The Impasse Buster is for closers, not posers.
• While the non-monetary terms and bidding details are being discussed in Step 1, before any offers have been made, the parties or their counsel caucus privately with the Mediator regarding bidding details in light of the prior negotiations and goals of the parties. Authority and Bid figures are submitted in rounded numbers. Odds of settlement are improved by agreeing to an appropriate rounding of the numbers for that specific case, ie., all figures must be rounded to the nearest $5k, $10k, $25k, $100k, $250k, $500k or sometimes even $1M before they are submitted in confidence to the Mediator.
• The Impasse Buster is designed for use after a good faith in-person mediation conference has resulted in impasse. The ideal time to use the Impasse Buster is a few weeks after impasse has been declared, when the parties have made a detailed assessment of what post-impasse preparation and trial mean. The idea is to negotiate as if on the “courthouse steps,” without having to waste all the time and money getting there.

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