5 PerspectivesJune 7, 2010
Negotiating through Impasse: A Paper from the Archives
a .pdf copy of “Break that Impasse: Practical Solutions to Eliminate Deadlock in Settlement Negotiations” is available here
Lately I have heard about impasse more often than normal — Marc Lanzkowsky posted 3 Settlement Techniques that Will Help Move a Case to Resolution on The Claims SPOT, which drove a great follow-on discussion about impasse among LinkedIn’s Commercial and Industry Arbitration and Mediation Group. As the comments continued, I thought about how much we all try to avoid — or work through — impasse, and an old article of mine came to mind. This is a quick post intended to reintroduce that article to the discussion.
Break that Impasse: Practical Suggestions to Eliminate Deadlock
It seems like only yesterday, but in 2004 I co-presented Break that Impasse: Practical Suggestions to Eliminate Deadlock in Settlement Negotiations to the Association of Corporate Counsel’s Annual Meeting in Chicago with an all-star group of copanelists, including Eric D. Green, Ross W. Stoddard, Melvin S. Merzon and Mark Tatelbaum. The paper, available here, is more than a few years old and I wrote it before my mediation training (so all disclaimers apply), but “Break that Impasse” includes:
- 20+ pages of ideas about how to prevent and break impasse — written primarily from the client’s perspective;
- Over 100 footnotes to mediators, judges, lawyers, clients and others who contributed their ideas to the paper; and
- A sample mediator’s proposal form, supplied by copanelist Ross Stoddard.
Take a look at “Break that Impasse” the next time impasse approaches — I hope it helps.
Categories: ADR,Fundamentals,Mediation,Negotiation,Settlement,Tactics
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I created this site to help clients and their counsel navigate the challenges that inevitably result from disputes, settlement efforts, impasse, and negotiation in general. The perspectives I bring are based on my experience, summarized in this abbreviated bio. If you have any questions or thoughts about this site, or an issue you’d like to see addressed, please email me at:
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5 Perspectives:
Marc Lanzkowsky — Tuesday, June 8, 2010 8:44 am
John
Thanks for the mention – great subject that deserves the attention it’s getting.
Marc
Michael Webster — Tuesday, June 8, 2010 9:56 am
There were some useful ideas and devices in the paper, and I would like to hear more about people’s experience with high-low offers. They strike me as very interesting.
John DeGroote — Tuesday, June 8, 2010 9:26 pm
Michael–
Thanks for your comment, and I’m glad you focused in on high-low offers. In case you haven’t seen it yet, I wrote about high-low offers in late 2008 at What High-Low Offers Can Do For You: Settlement Structures, Part III. I think they’re a great tool — when done right they can move the case toward settlement while simultaneously addressing the parties’ (divergent) interests.
Thanks again for reaching out–
John DeGroote
Michael Webster — Saturday, June 12, 2010 10:14 am
I have read the other papers, and I have an odd wonky thought.
In the typical impasse each sides are too optimistic about their chances of prevailing at trial. How might a high low offer be structured to solve this problem?
For example, if the plaintiff subjectively values a certain part of the decision tree as having X% chance, while the defendant thinks that X is way to high and something like B is the real chance, then the plaintiff should be able to “buy” from the defendant the B lottery in return for playing the X lottery.
How would that work? In theory, the defendant would agree to enter into a high low agreement with the following features.
1. If the settlement is above the X lottery, the plaintiff keeps the excess.
2. If the settlement is below the X lottery, the plaintiff goes down to the B lottery.
This device should force individuals to converge on a reasonable interval of high and low lotteries, after which the standard high low agreement could be entered into.
Philip J. Loree Jr. — Tuesday, July 6, 2010 2:53 pm
John,
Thanks for mentioning the Commercial and Industry Arbitration and Mediation Group, as well as group member Marc Lanzowsky. Your participation in and contributions to the group have helped make it what it is today.
If you are a reader of Settlement Perspectives, you would probably enjoy the group. You can read more about it and learn how to join here:
http://loreelawfirm.com/blog/linkedins-commercial-and-industry-arbitration-and-mediation-group-is-more-than-800-members-strong-and-growing
Readers may also be interested in reading Vickie Pynchon’s recent article on impasse here:
http://www.negotiationlawblog.com/2010/06/articles/negotiation/notes-on-breaking-impasse-build-a-golden-bridge/
All the best,
Phil