Negotiation Mistake 5: Thinking Impasse is “Their” Problem

From the blog of Nancy Hudgins

(This is the fifth in a series of Seven Mistakes Really Good Negotiators Make.)

Impasse. Like running into a brick wall. It’s self-defeating to think of impasse as the other side’s problem. If you want the case settled, it’s your problem, too.

Harvard Business School professors Deepak Malhotra and Max Bazerman in Negotiation Genius suggest keeping your head in the game. Ask questions to understand the other side’s underlying problem and then be creative. If you can think of ways to solve the other side’s problem, you’ve solved your problem as well.

You can start by asking questions, because otherwise, you are just acting on your own assumptions.

Who is the impediment to settlement: the other party or the other party’s lawyer? Why have they stopped negotiating? Is there an interest of theirs we could meet without giving up something in return?

You may come up with a solution to their problem that does not require additional concessions from you. Perhaps you can trade something without compromising. Not every negotiation has to end with a clear winner and a clear loser.

You may also want to re-analyze your position. Are you being too optimistic about your chances at trial?
Leigh Thompson, Professor of Dispute Resolutions and Organizations at the Kellogg School of Management at Northwestern University and author of The Mind and Heart of the Negotiator, counsels us to beware of the “overconfidence effect,” which refers to:

“unwarranted levels of confidence in people’s
judgment of their abilities and the occurrence
of positive events [like winning at trial] and
underestimates of the likelihood of negative
events [like losing at trial].”

She refers to studies showing that in final-offer arbitration, as in NFL salary negotiations, where the parties each give their final bid to a neutral arbitrator, both sides estimate that the neutral will choose their bid more than 50% of the time.

Also, re-analyze the negotiation. Did something come up during the mediation that suggests you should re-evaluate your case, or at least tweak your evaluation? Take a breather and look at your evaluation again before you walk away from the negotiating table.


Nancy Hudgins

Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class… MORE >

Featured Mediators

View all

Read these next


Speak Justly: Mediators and the Plain Language Movement

Just Court ADR by Susan M. Yates,Jennifer Shack, Heather Schiewe Kulp, and Jessica Glowinski.As a follow-up to last week’s post about interpreter services being required for all mediations, I’d like...

By Heather Scheiwe Kulp

Workplace Violence – Part 2

This is part two of a two-part series on workplace violence. See Part 1 here.Bullying in the Workplace When employers fail to create a safe working environment, workplace bullying flourishes....

By Ken Johnson

Playing Nice

From the Blog of Phyllis G. Pollack.        Most of the cases that I mediate are in litigation. They are lawsuits in which each party has hired an attorney to represent...

By Phyllis Pollack

Find a Mediator