Practical Tools for Overcoming Impasse in Negotiations

Tools, approaches and strategies successfully used by mediators to keep negotiations moving toward resolution.

Copyright: Lou Chang, ALC. 2004PO Box 61188

Honolulu, HI 96839

(808) 384-2468

Louchang@hula.net

Impasse avoidance tools and strategies are most effectively used after the mediator has:         Established and earned credibility and established

trustworthiness;         Obtained a thorough understanding of the past,

present and future potential relationships of the parties;         Explored the facts and perceptions of facts held by

the parties;         Determined, distinguished and prioritized the real

needs of the parties as distinguished from their stated positions;

        Explored unarticulated, unrealized or hidden needs of parties; and

        Created the most positive atmosphere conducive to reaching resolutions.

Indicators of false impasses:

       The consequences of not reaching resolution are worse, more expensive or more undesirable than options identified during the mediation process;

        Parties exhibit a high sense or affinity for gamesmanship, tactics or maneuvers;

        Negotiator wants to get that last bite or just a little more or one who is fearful of “leaving something on the table”;

        Institutional or political requirement or expectation that a party must fight a good fight until the last moment;

        Negotiators or advocates who strictly control or limit the flow of communications and the mediator’s access to principals.

Circumstances where a proposal coming from a neutral mediator may be acceptable where proposals from a party would be regarded with suspicion.

Six Types of Strategies Strategies that expand the pie. Using objective and external standards. Assessment strategies. Changing procedural or process patterns. Strategies relating to the physical control

of the process or creation of conducive environments for negotiating resolutions.

Last resorts.

Strategies that expand the pie.

Inventing options. Multiply the options. Work with more than one option at a time. Apply the mediation advantage. Identify values and outcomes that parties

cannot achieve through litigation but can through mediation.

Identify options of unequal value. Creative packaging. The Pizza parlor case Brainstorming.

Find and use objective and external standards. Guidelines and standards, rules and

regulationsRespected persons, expert industry standards Prior cases & precedents

Assessment strategies.

Mirror of reality: assess the relative advantages and disadvantages of options. Critical to be balanced with positives and negatives. Focus only on the negatives invites resistance.

No risk narrowing. Testing the strength of held positions The visual chart. The secret poll. Anchoring: framing a move as a gain, not loss.

Provide acknowledgement, give person sense of being valued.

Common cost/benefit elements. Positive and negative. Cost of continued conflict measured by lawyers’ fees,

experts’ charges, deposition costs, travel expenses, motions, trial time, appeal risks and the like.

Delay and loss of productive resources (management and staff time, resources and opportunity costs).

Opportunity to adopt a creative or tailored resolution option.

Uncertainty inherent in the arbitration or litigation process, the whims of a jury, a skeptical judge, the wild arbitrator, appellate courts, changes in the law.

Bad publicity or the risk of damage to reputation.

Changing procedural or process patterns. When a particular process is unproductive,

change the process. Change the roles. Walk a mile in the other’s

moccasins. If you were the mediator, what would you suggest?

Change the team, Change relationships Consider experiment or a “pilot project”. Incorporate a dispute resolution process Change the mediator, get help.

Control the process, create conducive

environments for negotiations Design the setting, room, seating, amenities,

treats. Create positive and happy environment.

Physical control allowed to neutral. Stop a walk out.

Doing the unexpected. Humor where natural, comfortable, non-

threatening and politically correct Puzzles and camels

On your best dayChart visually the possible outcome on

the best, OK, bad day and todayBad things can happen.

Last resorts- 1 Dispute may not be “ripe” for resolution Maintain hope and optimism. The walk-away with an open door. Always leave the door open to future resolution. Start filling out the date book, calendar the

discovery, depositions. Show what life will look like if no present resolution

The disappointed cheerleader. The impending end and silence.

Last Resorts- 2Confidential mediator evaluations.Private caucus warning. Caution: risks

loss of hard earned trust and neutrality.

Pau. Thank You.

For a copy of the article: Practical Strategies for Overcoming Impasses in Mediation, see www.Louchang.com