Legal Negotiations Summer 2015 Grades: Preparation

More thoughts on Negotiation Fisher and Ury (1981) say it very well:
When negotiators bargain over positions, they tend to lock themselves into those positions. The more you clarify your position and defend it against attack, the more committed you become to it. The more you try to convince the other side of the impossibility of changing your opening position, the more difficult it becomes to do so. You now have new interest in “saving face” – in reconciling future action with past positions – making it less and less likely that any agreement will wisely reconcile the parties’ original positions (p. 5).<br>

More thoughts on Negotiation Bazerman and Neale (1992) state that people fail to solve problems because of the assumptions they place on them and that this is the most critical barrier to creative problem solving (p. 18).<br>

More thoughts on Negotiation Mnookin, Peppet and Tulumello (2000) addressed this question directly.
Given a choice, most of us clearly would choose to do good. So why don’t we? The answer is often something along the lines of “The system won’t allow it.” People place the blame on the culture of law firms, the adversarial nature of our judicial system, the temptation to act out of self-interest, the rewards of playing hardball, the inflated expectations of clients, and the constraints of bargaining in the shadow of the law. The incentives to act combatively, selfishly, or inefficiently can be compelling. As we all know, however, the costs of adversarial tactics can be ruinous…And opportunities to create value – to make both sides better off – slip away (p. 3).<br>

And, one more thought on Negotiation… How can I help you get what you want so I can get more of what I want?<br>

Negotiation Ethics Restatement (Second) of Torts
§525
Restatement (Second) of Contracts
§164
Restatement (Second) of Agency
§348
ABA, Model Rules of Professional Conduct
Rule 4.1<br>

Negotiation Terminology ZOPA – zone of potential agreement
BATNA – best alternative to a negotiated agreement
Aspiration Value – the best possible deal available to your client
Reservation Value – the worst possible deal you could take and still meet your client’s interest<br>

Determining Your Client’s Interests Essential: what must be obtained
Important: what your client wants to get but would willing to exchange for an essential or another Important Item that is higher on the priority list.
Desirable: secondary items your client would be happy to get but they would also happily exchange one or more of these for an Important or Essential item.<br>

Negotiation Rule of Thumb Meet your client’s interests at the highest level possible.
Meet the opposing party’s interests well-enough so they will perform.
Meet the public’s interests in such a way that they will not interfere with your deal.<br>

Cooperative/Problem-Solving Style Move psychologically toward their opponent
Try to maximize joint returns
Begin with realistic opening offers
Seek reasonable results
Behave in a courteous and sincere manner
Rely on objective standards to guide discussions
Rarely resort to threats
Maximize the disclosure of relevant information
Are open and trusting
Are willing to make unilateral concessions<br>

Competitive/Adversarial Style Move psychologically against their opponent
Try to maximize their own returns
Begin with unrealistic opening offers
Seek extreme results
Behave in an adversarial and insincere manner
Focus primarily on their own positions
Frequently resort to threats
Minimize the disclosure of their own information
Manipulate their opponent.<br>

SinglePart v. LargeCorp Rankings<br>

Stages of Negotiation Preparation (Establishing Limits and Goals)

Preliminary Stage (Building Rapport)

Information Stage (Determining Value & Interests)

Distributive/Closing/Cooperative Stage<br>

Stages of Negotiation - Preparation Best Alternative to a Negotiated Agreement

Your Client’s Interests

Opposing Party’s Projected Interests

Strategy<br>

Stages of Negotiation - Preliminary Starting negotiations with a positive mood:

Increases cooperation

Produces more agreements

Promotes problem-solving to maximize “win/win”<br>

Stages of Negotiation - Information Listening

Asking questions:
Open-ended (who, what, when where, how, etc.)
Clean questions (what is important about)

Blocking techniques (be careful)<br>

Stages of Negotiation - Distributive/Closing/Cooperative Stage Principled Concessions (why)

Logrolling/bundling (don’t give it away, sell it)

Power bargaining

Creating value

Remember your walk-away point<br>

Determining Your Client’s Interests Keys
Ask lots of questions, especially clean questions and clarifying questions
Research
Listen closely
Make sure your own deep structure is not driving the bus.
The same process applies to determining the other party’s interests.<br>

Surface Structure is Words
Tonality
Body Language
Gestures


What you observe<br>

Deep Structure is Words
Tonality
Body Language
Gestures Beliefs
Values
Biases
Prejudices
Experiences
Fears
Dreams
Feelings<br>

Words
Tonality
Body Language
Gestures Beliefs
Values
Biases
Prejudices
Experiences
Fears
Dreams
Feelings Words
Tonality
Body Language
Gestures Beliefs
Values
Biases
Prejudices
Experiences
Fears
Dreams
Feelings<br>

International Negotiations<br>

To Effectively Negotiate, you must: Prepare.
Know your client’s interests AND their priorities.
Have a thorough understanding of your BATNA.
Use techniques – even ones you may not be completely comfortable with.
Be able to justify your position – and make the other party do the same.
Watch for blind spots.
Prepare.<br>

Bargaining from a Weak Position? Prepare, prepare, prepare.
Make sure you are very clear about your Reservation Point, your BATNA, etc.
Use your weakness to create value
“If you push me too hard, you’ll destroy me – and lose a value-creating partner”.
Get an expert.<br>