Negotiation and Mediation Communication Gambits for Breaking Impasse & more…

A sample of over 3,000 phrases for negotiators, mediators, and judges, on more than 400 topics in the book from Prof. John Barkai

Principle of the thing – I won’t settle

  • What principle is that exactly?
  • Do you have any higher principles?
  • How much flexibility does that principle have?

Quotations on conflict

  • You’ve got to hang the meat low enough to get the dog to jump for it.
  • Opportunity may knock, but it seldom nags.

Concession – ask for one

  • Can you do better than that?
  • We’re going to need something more than that.

Concession – don’t use the word “concession – Some people equate “concession” with conceding and losing

  • Do you have another idea?
  • Can you make a different proposal?

Concession – make one

  • What do you think of this?
  • What if I were to …
  • Here is some good news for you. We could…

Conditional offers

  • We’ll agree to___ if you will___.

Bracketing – Conditional offer technique

  • If I could convince the plaintiff to reduce its demand to $X, would you be willing to increase your offer to $Y?

Bracketing  – Range bargaining [Mediator’s bracket]

  • We seem to be stuck. Neither side wants to move off their position. What I find that works much of the time is to allow me, the mediator, to propose a range or bracket – with different numbers than what we have out there right now. My numbers will not be really close together, but they will be closer together than yours are right now. After we agree on the bracket, we will continue the negotiation in that range. Would you be willing to try that?

Bracketing  – Range bargaining [Mediator asks for commitment to]

  • If she were willing to offer X, would you be willing to offer Y in return?

Challenge low offers & lack of movement

  • What’s the reaction you think you’ll get to that?

First offer – flip for it

Last and final offer

  • I want to ask you to make a last and final offer. And I won’t come back to you anymore. It might not be quite the number you want to give, but it might just end this now. It is a number I think I can get from them. Here is the number…

Last gap to a charity

Mediator claims ownership to remove reactive devaluation

  • You have been talking about X but seem reluctant to make that an offer because you think they will reject anything you propose. And, frankly, I think it is possibly part of the solution here. So what if I bring it to them and say it’s my idea as the mediator. Would that work for you?

Mediator’s proposal

  • Can I make a mediator’s proposal, which is a number that I think you both could “live with”?
  • It’s been a long day. We don’t have an agreement yet. We could try a mediator’s proposal to reach settlement. It involves me coming up with a dollar figure or other terms that I think have the best chance of getting both of you to say “yes” to it. It will not be a number that necessarily is my personal evaluation of the case, or even my prediction of what a judge or jury would reach. It is a number that I think may be one you both could “live with” after spending all this time with you and hearing from both of you about your case. I’ll tell you more about it if you like.

Selective perception

  • I’m not trying to make this a psychology class, but let me explain something. Everyone tends to notices facts and arguments that support their own side and ignore factors that hurt their side. We are selective in noticing and weighing the factors to judge cases. We over-value our case and under-value our opponent’s case. That means that both sides need to move farther than they expect to.

Trial period

  • By the looks on your faces, I don’t see total comfort in the arrangement we’ve talked about. How do you folks feel about trying it out for a little bit? Like in a trial period? After  a two-month period, you can meet again and adjust as needed.

Two offers at once                            

What’s it worth to settle?

  • Think about an offer you can live with, the value of settling today.
  • What would it be worth to you to not have to worry about this case next week? …in bed tonight? …at the beach?

Whisper number from mediator

  • “What if I could get them to $X?

Ask the mediator to take ownership of a proposal to protect it from reactive devaluation.

Judicial Settlement Conference – Judge’s Gambits

  • How are you going to get around the fact that … ?
    • Is your client really firm on the amount he is demanding?
    • I don’t know what I can get from the other side, but if I can get some movement, do you have some leeway on the amount you are demanding?
    • Your client probably isn’t really at zero is he?

Why did you settle your case? – give them talking points to take home

  • I got what I wanted.
  • We both got what we needed in the settlement.
  • I got tired of throwing good money and time at a bad situation.
  • My lawyer’s kid graduated from college. He didn’t need any more of my money. Let me buy you lunch

Professor John Barkai of the University of Hawaii Law School recently published Negotiation and Mediation Communication Gambits for Breaking Impasses and More: What Do I Say When I Want To.…  This book contains over 3,000 phrases (gambits) for more than 400 negotiation and mediation topics that negotiators, mediators, mediation advocates, and judges can say to be more effective in their settlement work. Over 1,000 of the gambits are about breaking impasses.

Barkai has collected tens of thousands of such gambits over the 40+ years that he has been a mediator, mediation teacher, and mediation trainer. His gambit collection is from books, articles, videos, trainings, class assignments, friends, and many that he has made up himself. The best of those gambits are the heart of this book.

Written by: John Barkai