"The negotiation," say seasoned mediators, "does not begin until the parties reach impasse."

I always liked this phrase. It implies the kind of hard-headed can-do attitude I'd seek out in my own negotiation partner. It is resonant of those early injunctions of the trial attorneys who trained me. Though, come to think of it, none of those is suitable for a "family" blog.

I have to admit that my understanding of the impasse busting phrase took a while to sneak up on me. Having mediated a couple hundred settlement discussions now, its meaning is obvious.

ENTERING THE ZONE OF POTENTIAL AGREEMENT

Until the parties stop fooling around in the far reaches of their respective positions and enter the Zone of Potential Agreement, their bargaining moves aren't of any real consequence. It is only when they near their respective bottom lines -- when they are a "hard" one hundred thousand or a genuine few million dollars apart -- that the real negotiation begins.

Though I do have a few illustrative impasse breaking stories, right now I'm simply going to list some of the winning integrative bargaining strategies that Professor Thompson, author of The Heart and Mind of the Negotiator, recommends. Although these strategies can be deployed at the commencement of your settlement discussions, they are most useful when a truly non-negotiable impasse seems likely.

          1. Build trust and share information. This does not mean that you reveal your reservation price or your negotiation (or litigation) strategy. It does mean that you share your preferences and priorities across all negotiation issues.

          2. Ask diagnostic questions. Dr. Thompson tells us that only seven percent of negotiators seek information that would reveal the other parties' true goals and aspirations when it would be dramatically helpful to do so.

          3. Unbundle the issues. Though most litigators will tell you that their opponent is only interested in money, there are usually untapped resources in every business law dispute, including potential future business opportunities, the exchange of assets that may be more valuable to one party than the other, and competitive market advantages to be traded or synergized.

          4. Make Package Deals rather than Single-Issue Offers. This strategy is particularly helpful where the zone of potential agreement is narrow and trade-offs necessary to reach resolution.

          5. Make Multiple Offers Simultaneously. Professor Thompson recommends presenting at least two proposals that are of equal value to the offeror at the same time. Among many other advantages, this strategy can give you the substantial advantage of responding to counter-offers without having to make a concession.

Professor Thompson has many more winning integrative strategies. The five above provide us with enough material to chew on for the next several weeks.