You should prepare your client for deadlocks. They are an inevitable part of almost every negotiation but do not mean the case will go to trial. An impasse in negotiations, or "deadlock", is a perfectly valid outcome. In fact, I believe that most negotiations include a period of deadlock during which nobody seems willing or able to move from their position. Since 95% of all cases are negotiated to settlement, the chances of permanent deadlock are really quite slim. Somebody almost always finds a way out of the impasse somehow. Deadlocks can actually be times for periods of respite from intense emotions that might get in the way of honest negotiations. I have, for example, told clients to stop negotiating over issues so highly personal and volatile as the transfer of personal property items. Deadlock is far more frequent ovr who is going to get Aunt Tilly's tea service than it is over big-ticket items, such as the equity in a business. If emotions creep into the process too much, then "deadlock" is inevitable.

Some deadlocks don't play themselves out until the eve of trial. That, too, is a form of negotiation--waiting until the last possible moment before breaking through and settling. This can be quite costly, however, since this form of deadlock requires that both sides prepare their cases for trial, with all the attendant costs, often running into thousands of dollars.

Here are some traditional methods to break deadlocks which my clients report back as having worked for them:

1. Look for ways to reshape each side's terms. For example, you can change the terms of how money is transferred, even if the amount remains the same. A husband may be willing to pay $10,000 with interest at 8% over ten years, when he wouldn't be willing to pay $8,000 cash now.
2. Remove the more difficult items from the negotiation, and work on reshaping the terms of the easier items. Keep communication open for further negotiations on the difficult items later.
3. If the issue concerns unknown risks, such as the risk of audit from a prior tax return, consider changing the percentage of risk each will share, or the amount of time the risk will be shared.
4. If the deadlock involves future enforcement of your agreement, or the cost of enforcement, consider taking enforcement out of the court process and putting it into mediation or arbitration.
5. If the deadlock is between the lawyers (your respective experts), call in an independent third "expert" and get all three into a cooperative problem solving mode.
6. Ask for a settlement conference before an independent third party that you both respect, such as a judge, a lawyer/mediator, or a therapist.
7. Tell a joke.
8. Use one of the mediation services in your community.

No matter what, if you want to resolve deadlocks, you must re-involve your opponent in discussions. There can be no future negotiations unless the lines of communication remain open. Even suggesting new alternatives can have the effect of making the old proposals look better.

Who should make the first move in deadlocks? Many deadlocks are the product of poor communication, risk of losing face, or just personality differences--so you must consider these human variables when deciding whether to take the initiative. The lawyers could take the lead by seeing if they cannot find the compromise that their clients are unable to discuss. Remind your client that, even if the client's spouse doesn't make the first move, he or she will probably appreciate your taking the initiative. Nobody wants to go to trial, after all. But if the deadlock is caused by indecision, which is not uncommon during some of the more emotionally devastating stages of the divorce process, your client cannot overcome it even by taking the initiative. Sometimes you simply have to wait until the other spouse is in emotional shape to participate fully in the process.

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