Legal NegotiationsSummer 2015

Grades: •Preparation & Professionalism = 15% •Class Performance* = up to 5% of total

grade•Final Exam = 30 points•1st Scored Negotiation = 20% •2nd Scored Negotiation = 30%

Some Initial Thoughts on Negotiation

•in Nelken’s Understanding Negotiation (2001), Schelling states that bargaining power “has been described as the power to fool and bluff, the ability to set the best price for yourself and fool the other man into thinking this was your maximum offer” (p. 77).

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).

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).

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).

And, one more thought on Negotiation…

•How can I help you get what you want so I can get more of what I want?

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

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

Determining Your Client’s Interests1. Essential: what must be obtained2. 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.

3. 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.

Negotiation Rule of Thumb

1. Meet your client’s interests at the highest level possible.

2. Meet the opposing party’s interests well-enough so they will perform.

3. Meet the public’s interests in such a way that they will not interfere with your deal.

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

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.

SinglePart v. LargeCorp Rankings

Student Rank

Aida, Kenneth 1Ariana, Marie, Sam 2Josh, Aeree 3Brittany, Armin 4Jennifer, Ammaar 5Richard 6

Stages of Negotiation

•Preparation (Establishing Limits and Goals)

•Preliminary Stage (Building Rapport)

•Information Stage (Determining Value & Interests)

•Distributive/Closing/Cooperative Stage

Stages of Negotiation - Preparation•Best Alternative to a Negotiated

Agreement

•Your Client’s Interests

•Opposing Party’s Projected Interests

•Strategy

Stages of Negotiation - Preliminary•Starting negotiations with a positive

mood:

▫Increases cooperation

▫Produces more agreements

▫Promotes problem-solving to maximize “win/win”

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)

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

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.

Surface Structure is

•Words•Tonality•Body Language•Gestures

What you observe

Deep Structure is

•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

•Words•Tonality•Body Language•Gestures•Beliefs•Values•Biases•Prejudices•Experiences•Fears•Dreams•Feelings

International NegotiationsFemale Male Relationship

African African Family

French American (4) Business Partners

UK Lebanese Work Colleagues

UAE Italian (2) Work Colleagues**

Lebanese Indian Married (2)

Russian Mexican Engaged (2)

Brazilian Costa Rican Boyfriend/Girlfriend

Indian Russian Affair

Costa Rican Old Classmates

Mexican Employer

Argentinian

Italian

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.

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.