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50 Ways To Break An Impasse: Sam Imperati At The ABA Dispute Resolution Conference

I’m providing you with just a few clips from mediator Sam Imperati’s excellent presentation at the ABA Dispute Resolution Conference in New York City recently. Here’s his power point presentation.

Below are a few of Sam’s mediation advocacy tips.  You can find all of them at his website here.


1. Seek competitive results in a cooperative manner!

2. It doesn’t matter who calls first to invite settlement discussions. It does matter who makes the first offer that puts the dispute on the “playing field.” If you need a settlement and they won’t open, then put the best principled proposal you can on the table that will keep them negotiating. Present it with your logic and rationale in a confident but not arrogant manner. Do not make a concession until they step onto the “playing field.”

3. Develop a rational basis for each item presented in your opening position. This allows the other party to understand the rational reasons behind your demands, and helps explain your entitlement to ultimate goals.

4. Never lead with your “bottom line.” You might as well say, “See you in court!” Fully understand your bottom line prior to negotiating, and try to uncover theirs. Recognize there is a point, below which, the negotiations will not go.

5. Start bargaining with less important topics, in order to develop a cooperative mood and make progress. This will pay off later when more significant, but contentious subjects are discussed.

6. Ask the other side about each element of its perceived position. What exactly do they hope to obtain and what is the rational basis? What are the hidden motivational factors influencing their articulated demands? Go behind stated positions to unveil the underlying needs creating their positions.

7. Through patient probing, learn as much as you can about the other side’s range of choices, preferences, strengths and weaknesses, without overstating, or underestimating, your own.

8. Ask questions to elicit information from the other side in a non-threatening way. Build relationships whenever possible.

9. Allow them to ask questions of you, but respond as briefly as possible without playing “hide the ball.” They are more likely to believe your answer than your unsolicited statement.

10. If they come up with an initial proposal “from the parking lot,” very calmly ask them a series of questions that elicit the external, objective standards that support (or likely don’t support) their position. Build from the bottom up by dividing their proposal into its component parts and asking for the supporting data for each number.

11. Once they are on the “playing field,” your next proposal should be no closer to your goal than their position is from your goal.

12. Any subsequent movement on your part must have an objective rationale or be in response to their objective rationale. Do not move for the sake of movement . . . it is a sign of weakness.

13. Take advantage of the power of factual and legal arguments, appropriate and persuasive emotional appeals, as well as public policy. Rather than surprising the other party, make assertions that bring up points not considered by them before.

14. Offer a rationale. Explain to the other party why they can’t get what they asked for. They will feel satisfied even though they didn’t get it because they heard reasons for your decision. This makes them feel taken care of.

15. Rather than making negative threats, use affirmative promises to induce a reciprocal change in positions.

16. Your opponent is more likely to move:

a. Based upon an agreement (e.g., “If you’ll do X, I’ll do Y”);

b. Then in response to a caution (e.g., “If that happens, then X is likely to do Y”);

c. Then in reaction to intimidation (e.g. “I’ll clean your clock in the courtroom”).

17. To get past “No!” and beyond impasse:

a. Avoid emotional reactions and escalation. Refocus on your fundamental interests. Try to separate the “person” from the “problem.”

b. Don’t argue. Diffuse their negative emotions, including fear and hostility. Listen to their points and acknowledge their feelings without agreeing. Use “VECS.” Try to re-frame their position in order to problem-solve.

c. Bridge the gap between their interests and your own. Show how it’s in their interests to agree to a mutually beneficial solution. Use “Positive Reframing.”

d. Educate them to the consequences of their approach, including potential gains and losses for both sides. Focus on process and objective criteria. Brainstorm options, prioritize needs, gather and share data.

18. When you enter the “resolution zone,” go slowly. 75% of the work happens in the last 25% of the allocated time. Patience is a virtue!

19. Develop the power to walk away. Don’t pass the point where you=re no longer willing to walk away, based on your emotional investment and the time and effort spent negotiating, rather than on your best interests.

20. Your final proposal must entice your opponent to say “yes” from the perspective of their most likely alternative, moderated by their risk-averseness, assuming they have realistically evaluated the matter.

21. Do you want to be right or successful? Sometimes you have to choose. As a result, you may need to create a dynamic where you have to say “yes” to their proposal so they feel they won!

22. Beware of “Oh, by the way!” Get all terms on the table and negotiate the package. Nothing is final until both sides have agreed to all the deal points.


Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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