I agree totally with the post at Settle It Now Negotiation Blog:
I’ve said this before but it bears repeating — the negotiation doesn’t start until the parties reach impasse.
Why is that? Because impasse occurs at either side of the Zone of Possible Agreement (ZOPA). Before the parties reach that destination, they are bargaining in the stratos- and nanospheres, making “concessions” so far from the actual potential point of agreement that they might as well be doing needlework or shooting baskets.
There is no doubt that in many cases, particularly those with significant value, there will be a time (maybe even more than one time) when the settlement efforts seem dead ended (at an impasse). That is when a pause and new strategy are needed. The new strategy is truly the beginning of the serious negotiation efforts.
In Florida, virtually every litigated injury or death claim is required to go through a mediation process in an effort to resolve the matter by voluntary agreement between the parties. It always amazes me how much of the mediation session time is spent outside of the ZOPA. In other words, exchanging proposals that are so low or so high that the parties might as well be doing needlework. Then, in most instances, the ZOPA is entered. After that, mediation can be productive of a settlement. But, an impasse sometimes occurs.
That is when the mediator and the parties need to take stock and begin the true negotiations. They may not occur during the mediation, but they need to be thoughtfully considered and pursued in most instances.