Presentation on theme: "Practical Tools for Overcoming Impasse in Negotiations Tools, approaches and strategies successfully used by mediators to keep negotiations moving toward."— Presentation transcript:
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 PO Box Honolulu, HI (808)
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: T he consequences of not reaching resolution are worse, more expensive or more undesirable than options identified during the mediation process; P arties 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 regulations Respected 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 day Chart visually the possible outcome on the best, OK, bad day and today Bad 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- 2 Confidential 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