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. 2004
PO Box 61188 Honolulu, HI 96839
(808) 384-2468
[email protected]
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:
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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
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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, nonthreatening 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 www.Louchang.com