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Practical Tools for Overcoming Impasse in Negotiations Tools, approaches and strategies successfully used by mediators to keep negotiations moving toward.

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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:

1 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)

2 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.

3 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.

4 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.

5 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.

6 Find and use objective and external standards.  Guidelines and standards, rules and regulations  Respected persons, expert  industry standards  Prior cases & precedents

7 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.

8 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.

9 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.

10 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

11 On your best day  Chart visually the possible outcome on the best, OK, bad day and today  Bad things can happen.

12 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.

13 Last Resorts- 2  Confidential mediator evaluations.  Private caucus warning. Caution: risks loss of hard earned trust and neutrality.

14 Pau. Thank You.  For a copy of the article: Practical Strategies for Overcoming Impasses in Mediation, see


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